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The 
NORTH CAROLINA 



REGISTER 



IN THIS ISSUE 



31 



«L 



CONa 
TIT* 
ITK 



IN ADDITION 

NPDES Permits Notice 

« 

PROPOSED RULES 
Administration 

Electrolysis Examiners, Board of 
Environment, Health, and Natural Resources 
Human Resources 
Insurance 
Justice 
Transportation 

LIST OF RULES CODIFIED 

RRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 

CONTESTED CASE DECISIONS 

ISSUE DATE: APRIL 1, 1992 
Volume 7 • Issue 1 • Pages 1-105 



\AM IRRARY 



INFORMATION ABOUT THE NORTH CAROMNA REGISTER AND AnMINTSTRATTVE CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



TTie North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (SI 05 .00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 27611-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments: the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (52.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION 


CONTACT 




Office 


of 


Administrative Hearin 


gs. 


ATTN: Ru 


es 


Division, 


P.O. 


Drawer 27447, Raleigh, 


North Carolina 


27611 


-7447, 


(919) 


733-2678. 















NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh. NC 27611-7447 

(919) 733 - 2678 



Julian Mann III. 

Direclor 
James R. Scarcella Sr., 

Deputy Direclor 
Molly Masich, 

Director APA Services 



Staff: 

Ruby Creech, 

Pitblicaiions Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley. 

Editorial Assistant 



ISSUE CONTENTS 



I. IN ADDITION 

NFDES Permits Notice I 

II. PROPOSED RULES 
Administration 

Auxiliapv' Services 4 

Environment, Health, and 
Natural Resources 

Health Services 52 

Wildlife Resources 

Commission 28 

Human Resources 

Economic Opportunity 5 

Medical Assistance 4 

Insurance 

Departmental Rules 7 

Fnaineering and Building 

Codes 19 

Eire and Rescue Services 17 

Life and Health Division 22 

Property and Casualty 20 

Justice 
N.C. Alarm Systems 

licensing Board 27 

Licensing Board 
hicctrolysis Examiners, 

Board of 69 

Transportation 
Motor Vehicles, Division of 68 

III. LIST OF RULES CODIFIED 72 

IV. RRC OBJECTIONS 74 

\. RULES INA AI IDATED BY 

JUDICIAL DECISION 79 

M. CONTESTED CASE 
DECISIONS 

Index to ALJ Decisions 80 

Text of Selected Decisions 88 

ML CUMULATPVE INDEX 105 



NORTH CAROLINA REGISTER 

Publication Schedule 

(January 1992 - December 1 992 J 



Issue 


Last Day 


Last Day 


Earliest 


Earliest 


Last Day 


♦ 


Date 


for 


for 


Date for 


Date for 


to 


Earliest 




Filing 


Electronic 


Public 


Adoption 


Submit 


Effective 






Filing 


Hearing 


by 

Agency 


to 
RRC 


Date 


++♦*++++♦**+++♦+*+++++++++*♦♦++++++♦♦+++++*♦+++++♦+*+*+♦+♦++++++♦++ 


01 ,02 92 


12 09 91 


12,16,91 


01 1792 


02; 01 92 


02/20,/92 


0401/92 


01 15 92 


1220/91 


12,31,91 


01 30 92 


02,' 14 92 


02,20 92 


04 01/92 


02 03 92 


01 10 92 


01,17,92 


02 18 92 


03 04 92 


03/20/92 


05 01/92 


02/14 92 


01-24,92 


13 1,92 


02 29 92 


03 15 92 


03 '20/ 92 


05 01/92 


03 02 92 


02 10 92 


02/17/92 


03 17 92 


04/01 92 


04/20/92 


06 01 '92 


03 16 92 


02 24, 92 


03,02,92 


03 31 92 


04 15.92 


04 20,92 


06 01/92 


04 01 92 


03 a 1/92 


03 18/92 


04 16,92 


05 01 92 


05,20 92 


07,01/92 


04,15,92 


03 25/92 


04, 01 92 


04 30 92 


05 15 92 


05/20 92 


07, 01/92 


05 01 92 


04 10 92 


04/17/92 


05 16 92 


05 31 92 


06,20 92 


08 03/92 


05 15 92 


04 24 92 


05 01/92 


05 30 92 


06 14 92 


06, 20 92 


08 03/92 


06 01 92 


05 11 92 


05/18 92 


06 16 92 


07,01 92 


07/20,92 


09 01,'92 


06 15 92 


05 22 92 


06 01 92 


06 30 92 


07 15 92 


07,20 92 


09 01/92 


07/01 92 


06 10 92 


06 17 92 


07 16 92 


07 31 92 


08,20 92 


10 01/92 


07/15 92 


06 24 92 


07/01 92 


07 30 92 


08/14 92 


08/20 92 


10 01/92 


08 03 92 


07 13/92 


07/20 92 


08 18 92 


09 02 92 


09 20,92 


1 1 02/92 


08 14 92 


07 24 92 


07 31 92 


08 29 92 


09 13 92 


09 20 92 


1 1 02/92 


09 01 92 


08 11 92 


08 18 92 


09 16 92 


10 01 92 


10 20 92 


12 01/92 


09,15 92 


08 25 92 


09,0192 


09 30 92 


10 15 92 


10 20,92 


12/01/92 


10 01 92 


09 10,92 


09/17 92 


10 16 92 


10 31 92 


1 1 20/92 


01 04/93 


10 15 92 


09 24 92 


10 01 92 


10 30 92 


11 14 92 


11, 20 92 


01 04/93 


11 02 92 


10 12 92 


10 19 92 


11 17 92 


12 02 92 


12 20 92 


02 01/93 


11 16 92 


10 23 92 


10 30 92 


12 01 92 


12 16 92 


12 20/92 


02 01/93 


12 01 92 


11 06 92 


11/13,92 


12 16 92 


12 31 92 


0120 93 


03 01/93 


12 15 92 


1 1 24 92 


1201,92 


12 30 92 


01 14 93 


01 20,93 


03 01/93 



* The "Earliest Effective Date" is computed assuming that the agency follows 
the publication schedule above, that the Rules Re\ie\\.' Commission approves the 
rule at the next calendar month meeting after submission, and that RRC delivers 
the rule to the Codifier of Rules five (5) business days before the I st business 
day of the next calendar month. 



IN ADDITION 



1 his Section contains public notices that are required to be published in the Register or hax'e been 
approved by the Codifier of Rules for publication. 



STATE OF NORTH CAROLINA 

ENVIRONMENTAL MANAGEMENT COMMISSION 

POST OFFICE BOX 29535 

RALEIGH, NORTH CAROLINA 27626-0535 

PUBLIC NOTICE OF INTENT TO ISSUE STATE GENERAL NPDES PERMITS 

Public notice of intent to issue State National PoUutant Discharge Elimination System (NPDES) 
General Permits for Point Source Discharges of Stormwater associated with the foOowing activities: 

1. NPDES General Permit No. NCG030000 for the point source discharges of stormwater runoff as- 
sociated with industrial activities classified as Fabricated Metal Products [Standard Industrial Classi- 
fication Code (SIC) 34], Industrial and Commercial Machinery (SIC 35), Electronic Equipment (SIC 
36), Transportation Equipment (SIC 37), Measuring and Analyzing Instruments (SIC 38), and estab- 
lishments primarily engaged Ln the wholesale trade of metal waste and scrap, iron and steel scrap, and 
nonferrous metal scrap (hereafter referred to as the metal waste recycling industry). This General Per- 
mit is applicable only to stormwater discharges from areas at the facihties described above where ma- 
terials or material handling equipment are exposed to stormwater with the following exceptions. Point 
source discharges of stormwater runoff associated with industrial activities classified as Ship Building 
and Repair facilities (SIC 373), Structural Fabricated Metal (SIC 3441), and the wholesale trade dealing 
in metaJ waste recycling (a portion of SIC 5093) are covered regardless of material or material handling 
equipment exposure. Also included in this General Permit are stormwater discharges from areas at the 
facilities described above which are used for vehicle maintenance activities. 

2. NPDES General Permit No. NCG040000 for the point source discharges of stormwater runoff as- 
sociated with industrial activities classified as Timber Products (SIC 24). This General Permit is ap- 
plicable to stormwater discharges from areas at these facilities which are directly related to 
manufacturing, processing or raw materials storage areas at the industrial plant. Also included in this 
General Permit are stormwater discharges from areas at the facilities described above which are used for 
vehicle maintenance activities. The following activities shall not have coverage under this General 
Permit: Wood Kitchen Cabinets (SIC 2434), Wood Prescr\ing (SIC 2492), and Logging (SIC 241). 

3. NPDES General Permit No. NCG050000 for the point source discharges of stormwater runoff as- 
sociated with industrial activities classified as Apparel and Other Finished Products .Made from Fabrics 
and Similar Materials (SIC 23), Printing, Publishing, and Allied Industries (SIC 27), Converted Paper 
and Paperboard Products (SIC 267), Paperboard Containers and Boxes (SIC 265), Miscellaneous 
Manufacturing Industries (SIC 39), leather and Leather Products (SIC 31), and Rubber and Miscel- 
laneous Products (SIC 30). This General Permit is applicable to stormwater discharges from areas at 
the facilities described above where materials or material handling equipment are exposed to 
stormwater. Also included in this General Permit are stormwater discharges from areas at the facilities 
described above which are used for vehicle maintenance activities. The foUowing activities shall not 
have coverage under this General Permit: Leather Tannins and Finishing (SIC 311) and Tires and 
Inner Tubes (SIC 301). 

4. NPDES General Permit No. NCG060000 for the point source discharges of stormwater runoff as- 
sociated with industrial activities classified as Food and Kindred Products (SIC 20). Tobacco Products 
(SIC 21), Soaps, Detergents and Cleaning Preparations; Perfumes; Cosmetics and Other Toilet Prepa- 
rations (SIC 284), Drugs (SIC 283), and Public Warehousing and Storage (SIC 4221 - 4225). This 
General Permit is applicable only to stormwater discharges from areas at the facilities described above 
where materials or material handhng equipment are exposed to stormwater with the following ex- 
ceptions. Point source discharges of stormwater runoff associated with industrial activities classified 
as Soaps, Detergents and Cleaning Preparations; Perfumes; Cosmetics and Other Toilet Preparations 
(SIC 284) are covered regardless of material or material handling equipment exposure. Also included 



7:1 NORTH CAROLINA REGISTER April I, 1992 



IN ADDITION 



in this General Permit are stormwater discharges from areas located at the facilities described above 
which are used for vehicle maintenance activities. 

5. NPDES General Permit No. NCG070000 for the point source discharges of stormwater runoff as- 
sociated with industrial activities classified as Stone, Clay, Glass, and Concrete Products (SIC 32). This 
General Permit is applicable to stormwater discharges from areas at the facilities which are directly re- 
lated to manufacturing, processing or raw materials storage areas at the industrial plant. Also included 
in this General Permit are stormwater discharges from areas at the facilities described above which are 
used for vehicle maintenance activities. Point source discharges of stormwater associated with industrial 
activities classified as Ready-Mixed Concrete (SIC 3273) shall not have coverage under this General 
Permit. 

6. NPDES General Permit No. NCG090000 for the point sources discharges of stormwater runoff 
associated with industrial activities classified as Paints, Varnishes, Lacquers, Enamels, and Allied Pro- 
ducts (SIC 285). This General Permit is applicable to stormwater discharges from areas at the facilities 
described above where materials or material handling equipment are exposed to stormwater. Also in- 
cluded in this General Permit are stormwater discharges from areas at the facilities described above 
which are used for vehicle maintenance acti\ities. 

7. NPDES General Permit No. NCGIOOOOO for the point source discharges of stormwater runoff as- 
sociated with industrial activities classified as Used Motor Vehicle Parts (SIC 5015) and Automobile 
Wrecking for Scrap (a portion of SIC 5093). This General Permit is apphcable to stormwater dis- 
charges from areas at these facilities which are directly in\olved in the industrial activities. Also in- 
cluded in this General F'ermit are stormwater discharges from areas at the facilities described above 
which are used for vehicle maintenance acti\ities. The following activities shall not have coverage un- 
der this General Permit: estabhshments primarily engaged in the metal waste recycling industry. 

8. NPDES General Permit No. NCGl 10000 for the point source discharges of stormwater runoff as- 
sociated with industrial activities classified as Treatment Works treating domestic sewage or any other 
sewage sludge or wastewater treatment device or system, used in the storage, treatment, recycling, and 
reclamation of municipal or domestic sewage, with a design flow of 1.0 million gallons per day or more, 
or required to have an approved pretreatment program under Title 40 Code of Eederad Regulations 
(CER) Part 403, including land dedicated to the disposal of sewage sludge that is located within the 
confmes of the facility. This General Permit is apphcable to all stormwater discharges at these facilities. 
Also included in this General Permit are stormwater discharges from areas at the facihties described 
above which are used for vehicle maintenance activities. 

9. NPDES General Permit No. NCG120000 for the point source discharges of stormwater runoff as- 
sociated with industrial activities classified as Landfills that have a permit issued by the North Carolina 
Division of Solid Waste Management under the provisions and requirements of North Carolina Gen- 
eral Statute Chapter 130A - 294. This General Permit is applicable to all stormwater discharges from 
areas at these facilities which are directly related to industrial activity. Also included in this General 
Permit are stormwater discharges from areas at the facilities described above which are used for vehicle 
maintenance activities. The following activities shall not have coverage under this General Permit: 
stormwater discharges from open dumps or hazardous waste disposal sites and discharges of wastes 
(including Icachate) to the waters of the state. 

On the basis of preliminary staff review and application of Article 21 of Chapter 143 of the General 
Statutes of North Carolina, Public Law 92-500 and other lawful standards and regulations, the North 
Carolina Environmental .Management Commission proposes to issue State NPDES General Permits 
for the discharges as described above. 

INFORMATION: Copies of the draft NPDES General Permits and Fact Sheets concerning the draft 
Permits are available by writing or callmg: 

Ms. Colecn Sullins, Super\isor 
Stormwater Group 
Water Quahty Planning 



7:1 NORTH CAROLINA REGISTER April I, 1992 



IN ADDITION 



N.C. Division of Environmental Management 

P.O. Box 29535 

Raleigh, North Carohna 27626-0535 

Telephone (919) 733-5083 

Persons wishing to comment upon or object to the proposed determinations are invited to submit their 
comments in writing to the above address no later than .\pril 30, 1992. .AH comments received prior 
to that date will be considered in the final determination regarding permit issuance. A public meeting 
may be held where the Director of the Division of Environmental Management fmds a significant de- 
gree of public interest in any proposed permit issuance. 

The draft Permits, Fact Sheets and other information are on file at the Division of Environmental 
Management, 512 N. Sahsbur>' Street, Room 625-C, Archdale Building, Raleigh, North Carolina. 
They may be inspected during normal office hours. Copies of the information on fde are available 
upon request and payment of the costs of reproduction. AH such comments and requests regardiag 
these matters should make reference to the draft Permit Numbers, NCG030000, NCG040000, 
NCG050000, NCG060000, NCG070000, NCG090000, NCGOIOOOOO, NCGl 10000, or NCG120000. 



Date: March 11, 1992 



George T. Everett, Director 

Division of Environmental Management 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



PROPOSED RULES 



TITLE 1 - DEPARTMENT OF 
ADMINISTRATION 

1\ otice is hereby given in accordance with G.S. 
I50B-2I .2 that the Department of Administration 
intends to adopt rule(s) cited as I \'CAC 4G 
.0223. 

1 he proposed effective date of this action is Au- 
gust I, 1992. 

Instructions on how to demand a public hearing 
(must be requested in writing within 15 days of 
notice): To demand a public hearing, contact 
David McCoy, Department of Administration, 116 
West Jones Street, Raleigh. NC 27603-8003. 
Telephone: (9 19 J 733-7232. 

ixeason for Proposed Action: To assist the state 
in the processing of its recyclable surplus paper. 

(comment Procedures: Any interested person 
may request information, permission to be heard 
or copies of the proposed regulations by writing 
or calling David McCoy, Department of Adminis- 
tration, 116 West Jones Street, Raleigh, NC 
27603-8003. Telephone: (919) 733-7232. 

CHAPTER 4 - AUXILIARY SERVICES 

SUBCHAPTER 4G - SURPLUS PROPERTY 

SECTION .0200 - STATE SURPLUS PROPERTY 

.0223 SURPLUS PAPER 

All state agencies processing recyclable paper 
through the Division of State Surplus Property 
for disposition as surplus paper must remove the 
following contaminant materials: plastic maten- 
als (i.e. plastic folders, notebooks), metals (ex- 



cluding paper clips and staples), photographs, 
microfiche, microfilm, tape, glue-based labels, 
and window or sticky-backed en\elopes. 

Statutory Authority G.S. I30A-309.I4; 
I43-64.9(C). 

TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

ly otice is hereby given in accordance with G.S. 
I50B-2I.2 that DHR Division of .Medical Assist- 
ance intends to amend rule(s) cited as 10 i\CAC 
50A .0305. 



1 he proposed effective date of this action is July 
I, 1992. 

1 he public hearing will be conducted at 1:30 
p.m. on April 30, 1992 at the Sorth Carolina Di- 
vision of Medical Assistance, 1985 (Jmstead 
Drive, Room 201, Raleigh, N.C. 27603. 

Jxeason for Proposed Action: To conform with 
Social Services Commission rules. 

(comment Procedures: Written comments con- 
cerning this amendment must be submitted by 
April 30, 1992, to: Division of Medical Assist- 
ance, 1985 Umstead Drive, Raleigh, N.C. 27603, 
ATTN.: Bill Hottel, APA Coordinator. Oral 
comments may be presented at the hearing. In 
addition, a fiscal impact statement is mailable 
upon written request from the same address. 

CHAPTER 50 - MEDICAL ASSISTANCE 

SUBCHAPTER 50A - GENERAL PROGRAM 
ADMINISTRATION 

SECTION .0300 - APPEALS 

.0305 APPEAL DECISION 

(a) The hearing officer shall make a tentative 
decision which shall be seftt- to served upon the 
county department and the appellant by cortifiod 
mail. Decisions proposing to reverse the county 
department's action shall be sent by certified mail 
to the county department while decisions affirm- 
ing the county department s actions will be sent 
by certified mail to the appellant. 

(b) The county and the appellant may present 
oral and written argument, for and against the 
decision. Written argument may be submitted 
to or contact made with the Chief Hearing officer 
to request a hearing for oral argument. 

(c) If the Chief I learing Officer is not contacted 
within 10 calendar days of the date the notice of 
the tentative decision is signed, the tentative de- 
cision shall become final. 

(d) If the party that requested oral argument 
fails to appear at the hearing for oral argument, 
the tentative decision becomes fmal. 

(e) If oral and written arguments are presented, 
such arguments shall be considered and a final 
decision shall be rendered. 

(f) The final decision shall be mailed to the 
appellant and the count\- by certified maU. 

(g) A decision upholding the appellant shall be 
put into effect within two weeks after receipt of 
the final decision. 



7:1 NORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



Authority G.S. I08A-54; I08A-79; 42 C.F.R. 
431.244; 42 C.F.R. 431.245; 42 C.F.R. 431.246. 

■k-k-k*************** 



ly otice is hereby given in accordance with G.S. 
I50B-2I.2 that the North Carolina Department of 
Human Resources, Division of Economic Oppor- 
tunity intends to adopt rule(s) cited as 10 NCAC 
51G .0101 - .0105, .0201 - .0202, .030/ - .0303. 

1 he proposed effective date of this action is July 
1. 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on May 1 , 1992 at the Division of Economic 
Opportunity, 2413 Crabtree Blvd., Suite 119, 
Raleigh, North Carolina 27604. 

IXeason for Proposed Actions: To provide the 
Department the authority and a methodology for 
the distribution and administration of Head Start 
Bond Funds. 

(_- omment Procedures: Comments may be sub- 
mitted in writing or may be presented orally at the 
public hearing. Oral presentations which exceed 
three minutes are requested to have a written copy 
to be filed with the hearing clerk. Further details 
of the proposed rules may be obtained by writing 
or calling: XI s. Edith A. Hubbard, Director, Di- 
vision of Economic Opportunity, 2413 Crabtree 
Blvd., Suite 119, Raleigh, NC 27604. Phone No. 
(919) 733-2633. 

±liditor's iS'ote: These Rules have been Jiled as 
temporary rules effective on May 2, 1992 for a 
period of ISO days to expire on October 29, 1992. 

CHAPTER 51 - DIVISION OF ECONOMIC 
OPPORTUNITY 

SLBCIIAPTER SIG - HEAD START BOND 
FUND PROGRAM 

SECTION .0100 - GENERAL PROVISIONS 

.0101 SCOPE 

The Head Start Bond Fund Program provides 
state financial assistance to North CaroUna's 44 
Head Start grantees for the payment of the cost 
of acquiring, constructing, reconstructing, reno- 
vating, equipping and impro\ing Head Start 
classrooms, l-'unds are being made available to 
assist Head Start grantees in providing new and 
improving existing classroom facilities. 



Statutory Authority G.S. 
I43B-277; l43-323(d). 



I43B-10; J43B-276; 



.0102 ELIGIBLE GRANT RECIPIENTS 

Eligible grant recipients for Head Start Bond 
Program funds are North Carolina's 44 Head 
Start program operators currently receiving Head 
Start funds authorized under the Head Start Act , 
Title VI of the Omnibus Budget Reconciliation 
Act of 1981, as amended. 



Statutory Authority G.S. I43B-I0; I43B-276; 
I43B-277; l43-323(d). 

.0103 ELIGIBLE COSTS 

Implementation of the Head Start Bond Fund 
Program shall be in conformity with Chapter 760 
of Senate Bill 930 under the 1991 Session of the 
General Assembly of North Carohna. Eligible 
costs may include: 

( 1) I'he acquisition of Head Start classroom 
facilities including, without limitation, the 
acquisition of land; 

(2) The purchase, transporting and installation 
of modular classroom units. Costs associ- 
ated with the installation of a modular unit 
are: 

(a) acquisition of land, 

(b) electrical and plumbing, including sewer 
connection or septic tank mstallation, 

(c) heating, air conditioning and ventilation, 

(d) underpinning, 

(e) steps and handicap ramp, 

(f) fencing as required by law, and 

(g) sprinkler system and smoke alarm system. 

(3) Renovation or construction costs of the 
classroom facihty mcluding any general, 
electrical, plumbing, heating, air condition- 
ing and ventilation costs relative to the ren- 
ovation or construction; 

(4) Architect fees for the preparation of 
drawings and specillcations for the project; 

(5) Costs of advertisement for renovation or 
construction bids; 



(6) The cost of grading as would be considered 
normal for new classroom facilities including 
seeding, sprigging or sodding ot^ the site and 
the planting of trees and shrubs: 

(7) Classroom renovation or expansion costs 
necessary" to meet local and state safety and 
health requirements; 

(S) The costs ot' equipping or improving Head 
Start classroom facilities to meet Head Start 
needs: and 

(9) Other costs associated with rcno\ation, 
purchase or construction of classroom facil- 
ities deemed necessary^ and approved by the 
Division. 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



PROPOSED RULES 



Statuion' Authority G.S. I43B-I0: I43B-276; 
143B-277; l43-323(d). 



Tlie maximum amount that each Head Start 
grantee may apply for is thuty-six thousand three 
hundred and sixty four dollars ($36.364). 



.0104 INELIGIBLE COSTS 

Grant funds may not be used to pay direct or 
indirect administratiye or staff costs m con- 
nection uith the project. 

Statuton- Authority G.S. /43B-/0; I43B-276; 
I43B-277; l43-323(d). 

.0105 CRITERIA FOR GR.VNT .AWARDS 

(a) Each of North Carolina's 44 Head Start 
grantees may submit an application for funds. 
Grant applications are to document the need for 
additional classroom space or the need to im- 
pro\'e or equip existing classroom facilities. The 
application should include: 

(1) a statement suppiirting why funds are 
needed: 

(2) a commitment from other resources be- 
yond the grant request for de\elopment 
of the total project; 

(3) the endorsement of the county in which 
the proposed project is or \\i\\ be located; 

(4) a dcscnption of the anticipated impact in 
the community; 

(5) specific activities to be completed includ- 
ing a schedule of events. 

(b) The Department may elect not to fund any 
applicant experiencing management, fiscal or 
other problems in meeting the Head Start Pro- 
gram Pertbrmance Standards as determined bv 
the Department of Health and Human Services, 
Office ot Children, ^ outh. and F amilies. 

Statuton- Authority G.S. J43B-J0; 143B-276; 
I43B-27-7; l43-323(d). 

SECTION .0200 - APPLICATION 
REQLIRE.MENTS 

.0201 GENERAL PROVISIONS 

(a) Head Start program operators are required 
to submit applications in a manner prescribed by 
the DiMsion. lunding will be based on infor- 
mation contained in the application, thus appli- 
cations must contain sutTicient inibrmation for 
the [department to e\aluate them. 

(b| .-\ppUcants must comph \s ith all applicable 
state laws, regulations, rules and guidelines issued 
by the Dcp:irtment. 

Statuton' .Authoritv G.S. 
143B-2^7; l43-323(d). 

.0202 SIZE OF GR.ANTS 



Statutory Authority G.S. 
I43B-277; l43-323(d). 



I43B-I0: I43B-276: 



I43B-I0: I43B-276; 



SECTION .0300 - ADMINISTRATE E POLICIES 
AND PROCEDURES 

.0301 GENERAL PROVISIONS 

(a) The provisions of Subchapters 51B, 51C 
and 51G of this Chapter shall go\em adminis- 
tration of funds by grant recipients under the 
Head Start Bond Fund Program, except that in 
the case of conflicts among the provisions of 
Subchapters 51B, 51C and 51G. the provisions 
of Subchapter 51G shall govern. 

(b) Funds shall not be used to supplant other 
federal, state and local funds available for project 
activities. 

(c) Agencies funded under this program must 
comply with the requirements of Chapter 143. 
.-Vrticle 8 concerning public bidding for con- 
struction and acquisition of equipment. 

(d) -Moduku" classroom unit purchase and in- 
stallation, renovation and construction activities 
financed with Head Start Bond Fund Program 
funds must be pertbrmed in accordance with the 
requirements of applicable state and local regu- 
latory agencies. 

(e) Head Start classroom facilities purchased, 
renovated or constructed with Head Start Bond 
Fund Program funds must be used for Head Start 
purposes for not less than 10 years after purchase 
or completion of the project. 

(f) "1 he site on which a modular classroom is 
placed or a facility to be renovated or constructed 
must be owned by the applicant agency. In lieu 
of ownership, the apphcant agency must present 
evidence of long-term lease of site or faciUtv for 
a mmunum of 10 \ears. 



(g) litle to real property shall vest in the non- 
profit corporations, the pubhc agency, the county 
wherein the facilities are located, or in another 
public agency. 

Statuton Authority G.S. I43B-10: I43B-276; 
143B-277; l43-323(d). 

.0302 ACCOLNTABILITV 

The recipient shall maintain separate program 
and fiscal records to ensure financial account- 
ability for funds received and expended under the 
Head Start Bond Fund Program. 



Statutory .Authority G.S. 
1 43 B- 277; 143- 3 23(d). 



I43B-10: I43B-276: 



7:1 NORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



.0303 REIMBURSEMENT STANDARDS 

(a) All payments of Head Start Bond Fund 
Program funds to recipients must be for costs 
incurred dunns the .grant penod. Recipients will 
not receive payment for costs incurred pnor to 
approval of the grant agreement. 

(b) Payment of funds will be made on an as 
needed basis. Requests for funds under the Head 
Start Bond Fund Program must be made on 
forms prescribed by the Division. Requests for 
funds shall be supported by copies of invoices 
paid, or to be paid with .grant funds. The sub- 
mission of contracts to support invoices may be 
required, at the Department's discretion. 



Statutory Authority G.S. 1 43 B- 10; 
143B-277; l43-323(d). 



1438-276: 



TITLE 1 1 - DEPARTMENT OF 
INSURANCE 



No 



otice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Department of Insurance 
intends to amend rule(s) cited as 1 1 iSCAC I 
.0103, .0/06, .0201, .0204, .0301, .0401 - .0403. 
.0603: adopt rule(s) cited as II NCAC I .0209. 
.0413 - .0430: and repeal nde(s) cited as 1 1 
NCAC I .0203, .0405, .0407 - .0411. 

1 he proposed effective date of this action is July 
1, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on April 20. 1992 at the Dobbs Building. 3rd 
Floor Hearing Room, 430 N. Salisbury Street. 
Raleigh. N.C. 27611. 



R 



easons for Proposed Actions: 



II NCAC 1 .0103, .0106, .0201, .0204, .0.^01, .0401 - 
.0403, .0603 - To reflect changes in the Depart- 
ment's structure and to make corresponding 
amendments and repeals to conform with con- 
tested case hearing ndes. 

II NCAC 1 .0209, .0413 - .0430 - To update de- 
partmental ndes in contested case hearings and 
petitions for nde- making. 

II NCAC I .0203, .0405, .0407 - .0411 - Reflects 
changes in Department's structure and to conform 
with contested case hearing rules. 



Co 



'Omment Procedures: Written comments may 
be sent to Bill Hale, Hearings Division, P.O. Box 



26387, Raleigh, N.C. 27611. Oral presentations 
may be made at the public hearing. Anyone hav- 
ing questions should call Bill Hale or Ellen 
Sprenkel at (919) 733-4529. 

CHAPTER I - DEPARTMENTAL RULES 

SECTION .0100 - GENERAL PROVISIONS 

.0103 LOCATION AND MAILING ADDRESS 

(a) Location. The primary location of the 
North Carolina Department of Insurance is the 
Dobbs Building, 430 North Salisbury Street, 
Raleigh, North Carolina. The Engineering aft4 
Building Codoo Division is located at 410 N. 
Boylan Avenue, Raleigh, North Carolina 27603. 
The Fire and Rescue Division i* and the State 
Fire and Rescue Commission are located at 1 1 1 
Seaboard Ave., Raleigh, North Carolina 2761 1. 
27603. The Eastern Regional Office is located 
at 405 Middle St., Room 107, New Bern, North 
Carolina 28560. The Western Regional Office is 
located at 44i North Marlcot Squoro, Suito S+Oy 
537 College Street, AsheviUe, North Carolina 
28801. 

(b) Mailing Address. The mailing address for 
the North Carolina Department of Insurance is 
Post Office Box 26387, Raleigh, North Carolina 
27611. The mailing address for the Eastern Re- 
gional Office is Post Office Box 336, New Bem, 
North Carolina 28560. The mailing address for 
the Western Regional Office is Post Office Box 
1688, Ashevillc, North Carolina 28802. 

(c) The Department shall have normal working 
hours between 8:00 a.m. and 5:00 p.m., Monday 
through Friday. Legal holidays will be observed 
as recommended by the N.C. State Personnel 
Commission. 

Statutory Authority G.S. 5S-2-I. 

.0106 ORGANIZ.UION OFTIIE 
DEPARIMENT 

(a) In order to carry out effectively its functions 
and purposes, the Department is divided into se- 
veral divisions, including, but not limited to the 
following: 

(1) administration division, 

(2) logal hearings division, 

(3) company admissions division, 

(4) financial evaluation division, 

(5) consumer information division. 

(6) engineering aft4 building codon division, 

(7) fift* property and casualty division, 

(8) fire and rescue division, 

(9) investigations division, 

(10) agent services division, 

(11) lifo accident life and health division, 

(12) special scr\ices division, 



7:1 NORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



(13) 

(14) 
(15) 
(16) 
(17) 

(18) 
(19) 
(20) 

(21) 
(23) 



state property fire inouranoo fttft4 and risk 
management division, 

personnel division, 

budget division, 

field audit division, 

self-insured workers' compensation divi- 
sion, 

market conduct division, 

actuarial services division, 

North Carolina Fire and Rescue Com- 
mission, 
Seniors 



Health Insurance Information 
Program (SHI IF). 
Medical Database Commission, 



information svstems division. 



Statutory Authority G.S. 58-2-25; 5S-2-40. 
SECTION .0200 - DEP.VRTMENTAL RULES 

.0201 LOCATION OF AND INSPECTION OF 
DEPARTMENTAL RULES 

(a) Location of Departmental Rules. All rules 
for the department and all codes, standards and 
rules adopted by reference are located in the t«*- 
§*1 Hearings Division of the Department of In- 
surance. 

(b) Inspection of Rules. .Any person desiring 
to inspect the rules of the department shall so 
notify the Deputy Commissioner of the North 
Carolina Department of Insurance in charge of 
the L e gal Hearings Division. 

Statutory Authority G.S. 58-2-40: I50B-2I. 

.0203 PETITION FOR ADOPTION: 

AMENDMENT OR REPEAL OF RULES 

fa^ Right to Potition. Afty intorostod poroon 
H»y petition the Commi ' jf . ionor to promulguto. 
amond. e* ropoal a dopartmcntal rul e . 

fb) Form ef Petition. ¥h« potition oholl h^ m 
writing, f ' ignod b¥ i^ petitioning party »f partior . 
t*ft4 mu&t includ e tfee addrt ' so t»f A# petitioning 
party, fe addition, tfee petition ohall contain Ae 
follov i ing information: 

{-^ a draft ©f tfee propof . L>d rule, amendment 

ef repeal aft4 a I ' UmmaP ; thereof; 
f-3^ t^ rea ' ' i on( ' j) fef tj^ propoiial; 
Irh *^ effect ©«• e .x.i; i tLng rul e s »f orders »f 

both: 
(-4+ aftv data ohowing Ae probable effect &j^the 
proposal »ft e .listing practice -, ift A* afea 
invohed. including co -. t; aft4 
{4-} tfee names ©f those most likely to V>e af- 
fected t»y tiw proposal Vrrtfe addreosc * o if 
reasonably laio\vn. 
j\ddress fef Potition. Petitions !4«Ji be 



THNTION: D e puty Commissioner, Legal ©i- 
vision, PtOt Se* 26387, Ral e igh, North Carolina 

ki4 Disposition &f Petition. L pon receipt &f a 
petition, the Commissioner w+14 malcQ a study »f 
t4*e facts stated ift the petition a«4 asy^ additional 
informat i&» he dooms relevant. 44ie Depart 
ment's disposition ef the petition vr+ii- be made ift 
»fte »f the foUov i ing forms 'within 4<4 days »f f=e- 
ceipt Bt the petition: 

f4-> a wntton denial »f the proposal sotting 

forth the reasons fe* such denial, »p 
(3) a written communication to the petitioner 
indicating the Department's plan to initi 
ate rule making procedures pursuant to 
Q^ 15QB 12. 

Statutory Authority G.S. 58-2-40; 150B-12. 

.0204 NOTICE OF RULE-\L\KING HEARINGS 

Notice of rule-making hearings will be given in 
accordance with the provisions of North 
Carolina General Statutes. Chapter 150B 12. 
Part 2 of /Vrticle 2A of General Statute Chapter 
150B. 

Statutory Authority G.S. I50B-2I.I; I50B-2I.2; 
I50B-2I.4; I50B-2I.5. 

.0209 INSTRUCTIONS FOR FILING A 
PETITION FOR Rl LE-MAKING 

(a) /Vnv person may petition the Department 
to adopt a new rule, or amend or repeal an ex- 
isting rule by submitting a rulemaking petition t£ 
the Department. The petition must be titled 
•• Petition lor Rulemaking", must be in wnting. 
must be signed by the person submitting the pe- 
tition, and must include the following informa- 
tion: 



addressed i^ Commissioner ©f Insurance, A^ 



( 1) the name and address of the person sub- 
mitting the petition: 

(2) a citation to an\ rule for which an 
amendment or repeal is requested: 

(3) a draft of any proposed rule or amended 
mle; 

(4) an explanation of wh\' the new rule or 
amendment or repeal of an existing rule 
IS requested and the reason for the re- 
quest; 

(5) the effect of the new rule, amendment, or 
repeal on existing rules or orders, or both, 
and on the procedures of the Department: 

(6) any other information the person submit- 
ting the petition considers rcIevarrL 

(b) The Commissioner must decide whether to 
grant or denv a petition for ruk'making within 30 
days of recei\ing the petition. In making his de- 
cision, the Commissioner will consider the infor- 



7:1 NORTH CAROLIN.i REGISTER April I, 1992 



PROPOSED RULES 



mation submitted with the petition and any other 
relevant information. 

(c) When the Commissioner denies a petition 
for rulemaking, he must send written notice of 
the denial to the person who submitted the re- 
quest. The notice must state the reason for the 
denial. When the Commissioner g-ants a 
rulemaking petition, he must initiate mlemaking 
proceedings and send written notice ot the pro- 
ceedings to the person who submitted the re- 
quest. 

Statutory Authority G.S. 58-2-40(1); 150B-20. 

SECTION .0300 - DECLARATORY RULINGS 

.0301 DECLAR.VTORY RULINGS: GENERAL 
INFORMATION 

Te acquir e a doclarator>^ ruling as provided m 
Gt^ 150B 17, ^ prooodures set- forth m Ai* 
Section ohaU be otriotly adhorod tor Declaratory 
rulings pursuant to G.S. 150B-4 will be issued 
by the Department only on the vahdity of a rule 
of the Department or on the apphcability of a 
rule or order of the Department to stipulated 
facts. A declaratory rulmg will not be issued on 
a matter requiring an evidentiary proceeding. 

Statutory Authority G.S. 58-2-40(1): 150B-4. 

SECTION .0400 - ADMINISTRATIVE 
HEARINGS 

.0401 RIGHT TO HEARING 

Whenever the Department acts in such a way 
as to affect the rights, duties or privileges of a 
specific identified party, the party may appeal for 
a fmal decision by the Department in accordance 
with this Section and Article 3A of G.S. General 
Statute Chapter 150B. 

Statutory Authority G.S. 5S-2-40; I50B-3S. 

.0402 INFORMAL SETTLEMENT 

(a) Before a hearing request under 1 1 NCAC 
j_ .0401 can be acted upon, a person must first 
make an effort to resolve the matter with the 
Department informally and must attend and 
participate in any scheduled meetings or confer- 
ences. 

(b) A proposed settlement, including a stipu- 
lated statement of facts, shall be set forth in 
writing by the Department. If the proposed 
settlement is agreed to by all parties to the mat- 
ter, it shaU represent the fmal disposition of the 
matter and shall be signed by all parties to the 
matter or their legal representatives. If the pro- 
posed settlement is not agreed to and signed by 



aU parties, then the matter shall proceed as out- 
lined in 44- NCAC 4- SAMr U NCAC ]_ .0413. 

Statutory; Authority G.S. 58-2-40; 150B-38. 

.0403 REQUEST FOR HEARING 

(a) A request for an administrative hearing un- 
der \\_ NCAC J_ .0401 must be in writing and 
must contam the foUowing information: 

(1) name and address of the jjerson requesting 
the hearing, 

(2) a concise statement of the departmental 
action being challenged, 

(3) a concise statement of the maimer in 
which the petitioner is aggrieved, and 

(4) a clear and specific demand for a pubUc 
hearing. 

(b) The request for hearing shall be filed with: 
Commissioner of Insurance, ATTENTION: 
Deputy Commissioner, Logal Hearings Division, 
Post Office Box 26387, Raleigh, North Carolina 
27611. 

Statutory Authority G.S. 58-2-40; I50B-38. 

.0405 NOTICE OF HEARING 

Notice ©f a public hoaxing f . haU be givon m 
writing to Ae appropriate partioo m ad' i 'anco ef 

to Ae hoaring being held. 

Statutory Authority G.S. 58-2-50; I50B-23. 

.0407 INTERVENTION IN AN 

ADMINISTRATIVE HEARING 

fa^ A petition to intt'P ie n e may be pennittcd if 
tim e ly »«4 4 tl*e petition moeto Ae criteria set 
fortfe'ift G-iv iA-K R«ie 34(fe^ 

fb^ 4ft addition, tfee Commi ' j - jioner, i» bis dis- 
oretion. »*¥ allow inter , ontion ef limited inter 
v e ntion wh e n: 

f44 Similar rights wiU be affect e d; 

Inter' , ention will net oonfur . e isouoo; 
h i' iue - i ate the f i om e ef oimilar; 
Intervention ie i» the public interof . t; aft4 



Rt 
^ 
W 
^ 



Intor < ention will set prejudioo tbe rights 
»f parties. 

fe) A petition to inturvone shall contain the 
name »f the petitioner, the title ef the hearing, 
the date a«4 tim e »f tfee heonng. if known, afi4 
the grounds fof intervention. 44ie petition fof 
intervention r . hall be addressed to aH parties af- 
fected th e r e by a«4 to the Commissioner »f tft- 
suranc e . ATTHNTION: Deputy 

Commissioner, Logal Division, P.O. ©e* 26387, 
Raleigli, North Carolina 2761 1. 

(4} If the Commission e r alio we intenention, 
notice »f that decision shall be issued promptly 



7:1 NORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



to aii partioo aft4 to A* potitionor. XotiTioation 
wiiJ- mcludo a otatcmont &f &ȴ limitation ef tim <g . 
subj e ct mattLT. esidonce, ef other limitations ifft- 
poL i od eft y*e intononor. tf Ai* Commiooionor'o 
dijcir ' ion » to dony intLTn- ' ntion. tk# petitioner 
¥rtJi be notiilod promptly. 

Statutory Authority G.S. I50B-38: lA-I. 

.0408 DEPOSITIONS 

?^ Dopartmcnt §¥»¥ allow Ae »»« ef dopo 
sitions only whon attondanc e at a hoaring would 
work a hardf i hip ew- a person other . viso available 
to be subpoenaed as a ' . vitness. aft4 such hardship 
i* s^ great a* to be unreasonable m light »f the 
testimony that person may be expected to gise. 
fe such a case, a deposition wili be talcon m ae- 
cordance ' i vith the North CaroUna Rules ef Civil 
Procedure. Att necessap . ' rulings a* to vvhether a 
deposition vriii be allo' . ' i ed e* *? to methods »f 
securing a deposition afe V i ithin the power sg^^ 
discretion »f the hearing otTicor. 

Statutory Authority G.S. 150B-28; lA-l. 

.0409 SUBPOENAS 

fa^ iVny h e aring officer may issue subpoenas m 
the nam e 64~ the Department. 

(-bf Subpoenas requiring t^ attendance ef wk- 
nesses. ef reproduction e4 documents, oidonce 
&f things vriil be issued promptly bv a hoaring 
officer after receipt ei a ' . vntten request from a 
party to a contested ea^e fef such subpoena. 

fe^ Except a^ mav be other i viso stated m a 
particular subpoena a party &f person rocoi' i ing 
a subpo e na from the Department may object 
thereto by- filing a ' . ' ■ ritten objection to the 
subpoena with the Deputy Commissioner, Legal 
Division. PtOt e^Ht 16387, Raleich, >.efti» 
Carohna 27611. 

Statutory Authority G.S. I50B-38; J 503-39. 

.0410 SERVICE OF SLBPOEN.AS 

Subpoenas shall be sened as the officer issuing 
the subpoena shall direct . Subpoenas may be 
directed to be served by afty ef the foUoi i i i ing 
m e thods: 
(44 by aft employee ef the Department: ©f 
(-34 by the sheriff ei the county m >' i hich the 
person subpoenaed resides. whe» the party 
requesting such subpoena pre pays the 
sheriff's senice feer 
Subpo e nas ¥r4il- be issued i» duplicat e with a 
"Return 64' Sersice" form attached to eaet* copy. 
44*e person [. erring tbe subpoena ^rhrttt fi4i »«t the 
"Return t4 S e p < ice" form fof each copy aft4 
promptly return erne copy i*t tbe subpoena, with 



the attached "R e turn ©f Sop i 'ico" form com 
pletod. 

Statutory Authority G.S. 150B-38; 150B-39. 

.041 1 OBJECTION TO A SI BPOENA 

(*)• Except a* may be other i viso stated m a 
particular subpoena, a party Bf person receiving 
a subpoena from the Department may object 
thereto by filing a wntten objection to the 
subpoena with the Deputy Commissioner, Legal 
Division. P4». e^jt 263S7', Raleigh. Jv€r 37611. 
Aft objection to a subpoena must include a eon 
eise b«t complete statement &f reasons v i hy the 
subpoena should be revoked ^f modifi e d. Thos e 
reasons f^i^ include afty reason Ht law fof hold 
iftg tbe subpoena invalid. 

(-b) The objection shall be sonod upon the 
Commissioner aft4 the party ' i vho requested the 
subpoena. Sorsdce shall be ift accordance with 
the North Carolina Rules »f Ci' i il Procedure. 

(e)- rPhe party requesting the subpoena may file 
a written response to the objection. ?4*e Fe- 
sponso shall be sensed ift hire manner as tfee eb- 
jection. 

(4) ;\ftor receipt ef the objection aft4 response 
thereto, the hearing officer shall issu e a notice to 
the party ' ■ ' ■ ho requested the subpoena aft4 the 
party challenging ti*e subpoena, aftti mey notify 
aU- other parties &f a hoaring. to be sch e duled as 
soon a* practicable, at ' i shich time e' ^ idence aft4 
testimony regarding tbe obj e ction aft4 r e sponse 
may be presented. 



Statutory Authority G.S. 
I30B-40. 



1503-38; 1503-39; 



.0413 DEFINITIONS 

The definitions contained iji G.S. 150B-2 are 
incorporated in this Section bv reference. In ad- 
dition to those defuiitions, the following dcli- 
nitions apply to this Section: 

( 1) "Pile or filing" means to place or the plac- 
ing of the paper or item to b£ filed into the 
care and custody of the hearing officer, and 
acceptance thereof by him. All documents 
filed with the hearing officer, except exhibits, 
shall be m dupUcate in letter size 8 1 2" by 
11". 

(2) "Hearing officer" means cither the Com- 



missioner or a member of the Commission- 

thi 



er's staff appointed bv 
under G.S. 58-2-55. 



Commissioner 



(3) "Party" means the Department, the 
licensee, or an mter\'cnor who qualilies un- 
der II NC.\C 1 .11425. 

(4) "Senice or serve" means personal delivery 
or. unless other\Mse provided bv law or rule. 



10 



:1 NORTH CAROLINA REGISTER April!, 1992 



PROPOSED RULES 



delivery by first class United States Postal 
Service mail or a licensed overnight express 
mail service, postage prepaid and addressed 
to the person to be served at his or her last 
known address. A certificate of service by 
the person making the service shall be ap- 
pended to every document requiring service 
under this Section. Service by mail or li^ 
censed overnight express mail is complete 
upon placing the item to be sen,'ed, enclosed 
in a wrapper addressed to the person to be 
served, in an official depository of the 
United States Postal Service upon delivery, 
postage prepaid and wrapped in a wrapper 
addressed to the person to be served, to an 
agent of the overnight express mail service. 

Statutory Authority G.S. 58-2-40(1); 58-2-50; 
58-2-55; 58-2-70; 1 50 B- 38(h). 

.0414 GENER.\L PROVISIONS 

Governed by the principles of fairness, uni- 
formity, and punctuality, the following general 
provisions apply to this Section: 

( 1) The Rules of Civil Procedure as contained 
in G.S. lA-1 and the Cieneral Rules of 
Practice for the Superior and District Courts 
as authorized by G.S. 7 A- 34 and found in 
the Rules Volume of the North Carolina 
General Statutes apply in contested cases 
before the Commissioner unless another 
specitlc statute or rule "provides otherwise. 

(2) The Department may supply, at the cost 
for copies specified in G.S. 58-6-5(3), forms 
for use in contested cases. 

(3) Eyerv' document tiled with the hearing of- 
ficer shall be signed by the attorney who 
prepared the document, if it was prepared 
by an attorney, and shall contain his name, 
address, telephone number, and North 
Carolina State Bar number. An original and 
one copy of each document shall be filed. 

(4) I'xcept as otherwise pro\idcd by statute, 
the rules contained in this Section govern 
the conduct of contested case hearmgs under 
Chapter 58 of the General Statutes. 

(5) The content and the manner of ser\'ice of 
the notice of hearing shall be as specified in 
G.S. 15QB-3S(b) and (c). 

(6) Venue in a contested case shall be deter- 
mined in accordance with (i.S. 150B-38(e). 

(7) llearings shall be conducted, as nearly as 
practical, in accordance with the practice in 
the Trial 13i\ision of the General Court of 
Justice. 



(8) Hx parte communications in a contested 
case are governed by G.S. 15(IB-40(d). 



(9) This Section and copies of all matter 
adopted by reference in this Section are 
available from the Department at the cost 
established in G.S. 58-6-5(3). 

(10) "1 he rules of statutory construction con- 
tained iri Chapter 12 of the General Statutes 
apply in the construction of this Section. 

(11) Unless otherwise pro\idcd in a specific 
statute, time computations in contested 
cases under this Section are governed by 
G.S. IA-1, Rule 6. 

Statutory Authority G.S. 58-2-40(1); 58-2-50; 
58-2-55; 58-2-70; l50B-38(h). 

.0415 ORDER FOR PREHEARING 
STATEMENTS 

The hearing officer may serve all parties with an 
order for prehearing statements together with, or 
after service of the notice of hearing. Every 
party thus served shall, within 30 days after ser- 
vice, file the requested statements setting out the 
party's present position on the following: 

( 1) The nature of the proceeding and the issues 
to be resolved; 

(2) A brief statement of the facts and reasons 
supporting the party's position on each 
matter in dispute; 

(3) A list of proposed witnesses with a brief 
description of his or her proposed testimony; 

(4) A description of what discovery, if any, the 
party will seek to conduct prior to the con- 
tested case hearing and an estimate of the 
time needed to complete discovery; 

(5) Venue considerations; 

(6) Istimation of length of the hearing; 

(7) 1 he name, address, and telephone number 
of the party's attorney, if any; and 

(8) Other special matters. 

Statutory Authority G.S. 58-2-40(1); 58-2-50; 
58-2-55; 58-2-70; l50B-38(h). 

.0416 niTIES OF THE HEARING OFFICER 

In conjunction with the powers in this Section, 
in General Statute Chapter 58. and in Article 3 A 
of General Statute Chapter 15()B. the hearing 
officer shall perform the following duties, con- 
sistent with law: 

( 1) Hear and rule on motions; 

(2) Grant or deny continuances; 

(3) issue orders regarding prehearing matters, 
including directing the appearance of the 
parties at a prcheanng conference; 

(4) Hxamme vsitnesses when deemed to be 
necessary' to make a complete record and to 
aid in the full development of material facts 
in the case; 



7:1 NORTH CAROLINA REGISTER April I, 1992 



11 



PROPOSED RULES 



(5) Make preliminan'. interlocutory, or other 
orders as deemed Ui be appropriate; 

(6) Recommend a summary' disposition of the 
case or any part thereof when there is no 
genuine issue as to any material fact or re- 
commend dismissal u'hen the case or any 
part thereof has become moot or for other 
reasons: and 

(7) AppK' sanctions in accordance with 1 1 
NCAC 1 .0423. 

Staiutorv Auihoritv G.S. 58-2-40(1); 58-2-50; 
58-2-55; 58-2-70: 'l50B- 38(h). 

.0417 CONSENT ORDER; SETTLEMENT; 
STIPl LATION 

Informal disposition may be made of a con- 
tested case or an issue in a contested case by 
stipulation, asireement. or consent order at any 
time dunng the proceedings. Parties may enter 
mto such agreements on their own or may ask for 
a settlement conference with the hearing officer 
to promote consensual disposition of the case. 



Statutory Authority G.S. 58-2-40(1); 58-2-50; 
58-2-55; 58-2-70; l50B-38ih). 

.0418 SETTLEMENT CONFERENCE 

(a) A settlement conference is for the primar\' 
purpose of assisting the parties in rcsolying dis- 
putes and for the secondary purpose of n arrow - 
mg the issues and prepanng for hearing. 

(b) I pon the request of an\ party, the hearing 
officer shall assign the case to another heanng 
officer appointed by the Commissioner under 
G.S. 58-2-55 for the purpose of conducting a 
settlement conference. Inless the parties and the 
other hearing otficer agree, a unilateral request for 
a settlement conference does not constitute good 
cause for a continuance. The conference shall 
be conducted at_ a time and place agreeable to all 
parties and the heanng otficer. It shall be con- 
ducted by telephone if any party would be re- 
quired to trayel more than 50 miles to attend, 
unless that part\ agrees to tra\el to the location 
set tor the conference. It a telephone conference 
is scheduled, the parties must be ayailable by 
telephone at the time of the conference. 

(c) All parties shall attend or be represented at 
a settlement conference. Parties or their repre- 



(e) At the settlement conference, the parties 
shall be prepared to provide information and \o_ 
discuss all matters required in n_ NCAC ]_ .0415. 

(f) If following a settlement conference, a 
settlement has not been reached but the parties 
have reached an agreement on any fact s or other 
issues, the heanng officer presiding oyer the 
settlement conterencc shall issue an order con- 
firming and appros'ing, if necessary, those matters 
agreed upon. Ihe order is bindmg on the hearing 
officer who is assigned to hear the case. 



Statutory Authority G.S. 58-2-40(1); 58- 
58-2-55; 58-2-70; 150B-38(hj. 



-50; 



.0419 PREHEARING CONFERENCE 

(a) The purpose of the prehearing conference 
is to simplify the issues to be determined; to ob- 
tain stipulations in regard to foundations for tes- 
timony or exlubits; to obtam stipulations of 
agreement on undisputed facts or the application 
of particular laws; to consider the proposed wit- 
nesses for each party; to identify and exchange 
documentary' evidence intended to be introduced 
at the heanng; to determine deadlines for the 
completion of any discovery; to establish hearing 
dates and locations if not pre\iously set; to con- 
sider such other matters that may be necessary' 
or ad\isable; and, if possible, to reach a settle- 



ment without the necessity for further heanng. 
Any tinal settlement shall be set forth in a settle- 
ment agreement or consent order and made a 
part of the record. 

(b) Ipon the request of any party or upon the 
hearing officer's own motion, the hearing officer 
nia\' hold a prehearmg conference before a con- 
tested case hearing. The heanng officer ma\ re- 
quire the parties to file prehearing statements in 
accordance with _n NCAC j_ .0415. A prehear- 
ing conference on the su"npliticatiQn of issues, 
amendments, stipulations, or other matters may 
be entered on the record or may be made the 
subject of an order bv the hearing officer. Venue 
tor purposes of a preheanng conference shall be 
detemiined in accordance with (j.S. 15()B-3S(e). 

Statuiorv .Authority G.S. 58-2-40(1); 58-2-50; 
58-2-55; 58-2-70; 150B-38(hJ. 

.0420 CONSOLIDATION OF C.VSES 

(a) The hearing officer may order a joint hear- 
scntatnes shall be prepared to participate in ing of any matters at issue in contested cases in- 



settlement discussions. 

(d) The parties shall discuss the possibility of 
settlement before a settlement conference if the\' 
belie\e that a reasonable basis for settlement ex- 
ists. 



\ol\ing common questions of law or fact or 
multiple proceedings involving the same or re- 
lated parties, or ma\ order the cases consolidated 
or make other orders to reduce costs or dela\' in 
the proceedings. 



12 



:■! NORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



(b) A party requesting consolidation shall serve 
a petition for consolidation on all parties to the 
cases to be consolidated and shall tile the ori^nal 
with the hearing ofTicer, together with a certificate 
of service showing service on all parties as herem 
required. Any party objecting to the petition 
shall serve and file his objections within 10 days 
after service of the petition for consolidation. 

(c) Upon determining whether cases should be 
consohdated, the hearing officer shall serve a 
written order on all parties that contains a de- 
scription of the cases for consolidation and the 
reasons for the decision. 

(d) Nothing contained in this Rule prohibits 
the parties from stipulating and agreeing to a 
consohdation, which shall be granted upon sub- 
mittal of a written stipulation, signed by every 
party, to the hearing officer. 

(e) Following receipt of a notice of or order for 
consolidation, any party may petition for 
severance by serving it on all other parties and 
tiling with the hearing officer at least seven days 
before the first scheduled hearing date. If the 
hearing officer finds that the consolidation will 
prejudice any party, he shall order the severance 
or other relief that will prevent the prejudice from 
occurring. 

Statutory Authority G.S. 58-2-40(1); 5S-2-50; 
5S-2-55; 58-2-70; l50B-38(h). 

.0421 DISCOVERY 

(a) Discovery methods are means designed to 
assist parties in preparing to meet their rcsp>onsi- 
bilities and protect their nghts during hearings 
without unduly delaying, burdening or compli- 
cating the hearings process and with due regard 
to the rights and responsibilities of other parties 



obligated to exhaust aU less formal opportunities 
to obtain discoverable matcnal before utilizing 
this Rule. 

(b) Any means of discovery available pursuant 
to the North Carolina Rules of Ci\il Procedure, 
G.S. lA- 1, is allowed. If the party from whom 
disco\er\- is sought objects to the discovery, the 
party seeking the discovery' may file a motion 
with the hearing olficer to obtain an order com- 
pelling discovery. In the disposition of the mo- 
tion, the party seeking discovery shall have the 
burden of showing that the discoNcrv is needed 
for the proper presentation of the party's case, is 
not for purposes of delay, and that the issues in 
controversy are sitgiificant enough to warrant the 
discmerv. In ruling on a motion for discovery. 



(c) When a party serves another party with a 
request for discovery, that request need not be 
filed with the hearing officer but shaU be served 
upon all parties. 

(d) The parties shall immediately commence to 
exchange information voluntarily, to seek access 
as provided by law to public documents, and to 
exhaust other informal means of obtaining 
discoverable material. 



(e) All discovery shall be completed no later 
than the first day of the hearing. The hearing 
officer may shorten or lengthen the period for 
discovery and adjust hearing dates accordingly 
and, when necessary, allow di.scovery dunng the 
pendency of the hearing. 

(f) No later than 15 days after receipt of a no- 
tice requesting discovery, the receiving party 
shall: 



01 
111 



move for relief from the request; 

provide the requested information, mate- 

rial or access; or 



offer a schedule for reasonable compliance 
with the request, 
(g) Sanctions for failure of a party to comply 
with an order of the hearing officer made pursu- 
ant to this Rule shaU be as provided for by G.S 

lA-1 

and 



Rule 37, to the extent that a heann" officer 



may impose such sanctions 
.0423. 



11 NCAC 1 



Statutory Authority G.S. 58-2-40(1); 58-2-50; 
58-2-55; 58-2-70; l50B-38(h). 

.0422 SLBPOENAS 

(a) Subpoenas for the attendance and testi- 
mony of witnesses or for the production of doc- 
uments, either at a hearing or for the purposes 



and persons affected. Accordingly, parties are -pr: 



of discovert', shall be issued in accordance with 



the heanng officer shall recogru/e all privileges 
recognized at law. 



G.S. 150B-39(c) and G.S. lA-1 Rule 45. 

(b) A subpoena shall be served in the manner 
provided by GJv 15()B-3Q(c) and GJv lA-1, 
Rule 45. The cost of service, fees, and expenses 
of any witnesses subpoenaed shall be paid by the 
party at whose request the witness appears. A 
party seeking an order imposing sanctions for 
failure to comply with any subpoena issued un- 
der this Rule must prove proper service of the 
subpoena. 

(c) Objections to subpoenas shall be heard in 
accordance with G.S. 150B-3Q(c) and G.S. lA-1, 
Rule 45. 

Statutory Authority G.S. 58-2-40(1); 58-2-50; 
58-2-55; 58-2-70; l50B-38(h). 

.0423 SANCTIONS 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



13 



PROPOSED RULES 



(a) If a party fails to appear at a hearing or fails 
to comply with an interlocutory order of the 
hearing officer, the hearing officer may: 

( 1) lind that the allegations of or the issues 
set out in the notice of hearing or other 
pleading may be taken as true or deemed 
to be proved without further evidence; 
Dismiss or grant the motion or petition; 

(3) Suppress a claim or defense; or 

(4) f'xclude evidence. 

(b) In the event that any party, attorney at law, 
or other representative of a party engages in be^ 
havior that obstructs the orderly conduct of pro- 



Ql 



ceedings or would constitute contempt if done in 
the General Court of Justice, the hearing officer 
may enter a show cause order returnable in Su- 
perior Court for contempt proceedmgs in ac- 
cordance with G.S. 150B-40(c)(6). 

Statuton Authority G.S. 58-2-40(1); 58-2-50; 
58-2-55; 58-2-70; l50B-38(h). 

.0424 .MOTIONS 

(a) Any application to the hearing officer for 
an order shall be bv motion, which shall be in 
writing unless made dunng a heanng. and must 
be filed and served upon all parties not less than 
10 days before the heanng. if any, is to be held 
either on th£ motion or the merits of the case. 
The nonmo\ing party has 10 days after the date 
of service of the motion to tile a response, which 
must be in wnting. .Motions practice in con- 
tested cases before the Commissioner are gov- 
erned by Rule 6 of the General Rules of Practice 
for the Superior and District Court. 

(b) If any party desires a hearing on the mo- 
tion, he shall make a request for a hearing at the 
time of the tiling of his motion or response. A 
response shall set forth the nonmoving party's 
objections. All motions in writing shall be de^ 
cided without oral argument unless an oral argu- 



.0425 INTERVENTION 

(a) Any person not named m the notice of 
hearing who desires to intervene in a contested 
case as a party shall fde a timely motion to in- 
tervene and shall serve the motion upon all ex- 
isting parties. Timeliness will be determined bv 
the hearing officer m each case based on circum- 



stances at the time of filing. The motion shall 
show how the movant's rights, duties, or pnvi- 
leges may be determined or affected by the con- 



tested case; shall show how the mo\ant may be 
directly affected by the outcome or show that the 
movant's participation is authorized by statute, 



rule, or court decision; shall set forth the grounds 
and purposes for which intervention is sought; 
and shall indicate movant's statutory' right to in- 
tervene if one e.xists. 

(b) Any party may object to the motion for 
intervention by tiling a written notice of ob- 
jections with the hearing otTicer within fne days 
after service of the motion if there is sufficient 
time before the hearing. The notice of objection 
shall state the party's reasons for objection and 
shall be served upon all parties. If there is in- 
sufficient time before the hearing for a written 
objection, the objection may be made at the 
heanng. 

(c) WTien the hearing officer deems it to be 
necessary to develop a full record on the question 
of intervention, he may conduct a hearing on the 
motion to detennine specific standards that will 
apply to each intervenor and to defme the extent 
of allowed intervention. 

(d) The hearing officer shall allow intervention 
upon a proper showing under this Rule, unless 
he finds that the movant's interest is adequately 
represented by one or more parties participating 
in the case or unless intervention is mandated by 
statute, rule, or court decision. An order allow- 
ing intervention shall specify the extent of par- 
ticipation permitted the intervenor and shall state 



ment is directed by the heanng otTicer. When liH 



the heanng ofticer's reason. An intervenor mav 



oral argument is directed by the heanng officer, b£ 
a motion shall be considered submitted for dis- Qi 

position at the close of the argument. A hearing 
on a motion will be directed bv the hearing offi- Qi 

ccr only if it is determined that a hearing is nec- 
essary to the de\elopment of a full and complete (3) 
record on which a proper decision can be made. 
All orders on such motions, other than those 
made during the course of a heanng. shall be in 
wnting and shall be served upon all parties of 
record not less than fi\e da\s before a hearing, if 
any, is held. 

Statutoiy .Authority G.S. 58-2-40(1); 58-2-50; 
58-2-55; 58-2-70; l50B-38(h). 



be allowed tCK 

File a w ritten brief without acquiring the 



status of a party; 
Intervene as a party with all the rights of 
a party; or 

Intervene as a party with all the rights of 
a p:irt\' but limited to specffic issues and 
to the means necessary to present and de- 
velop those issues. 



Statutor\> Authority G.S. 58-2-40{l); 58-2-50; 
5S-2-55: 58-2-70; l50B-3S{h). 

.0426 CONTINUANCES 

(a) As used in this Rule, "good cause" includes 
death or incapacitating illness of a party, reprc- 



14 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



PROPOSED RULES 



sentative. or attorney of a party; a court order 
requiring a continuance; lack of proper notice of 
the hearing; a substitution of the representative 
or attorney of a party it' the substitution is shown 
to be required; a change in the parties or 
pleadings requiring postponement; and agree- 
ment for a continuance by all parties if either 
more time is clearly necessary to complete man- 
datory preparation for the case, such as author- 
ized discovery, and the parties and the heanng 
officer have agreed to a new hearing date or the 
parties have agreed to a settlement of the case 
that had been or is likely to be approved by the 
final decision maker. 

(b) As used in this Rule, "good cause" does 
not include: intentional delay; unavailability of 
counsel or other representative because of en- 
gagement in another judicial or administrative 
proceeding unless all other members of the at- 
torney's or representati\-e's firm familiar with the 
case are similarly engaged, or if the notice of the 
other proceeding was received subsequent to the 
notice of the hearing for which the continuance 
is sought; unavailability of a witness if the wit- 
ness' testimony can be taken by deposition; or 
failure of the attorney or representative to prop- 
erly utdize the statutory notice penod to prepare 
for the hearing. 

(c) A request for a continuance of a hearing 
shall be granted upon a showing of good cause. 
Unless time does not permit, a request for a 
continuance of a hearing shall be made in writing 
to the heanng officer and shall be served upon 
all parties of record. In determining whether 
good cause exists, due regard shall be .given to the 
ability of the party requesting a continuance to 
proceed effectively without a continuance. A 
request for a continuance tiled within five days 
before a hearing shall be denied unless the reason 
for the request could not ha\'e been ascertained 
earlier. 

(d) During a hearing, if it appears in the interest 
of justice that further testimony should be re- 
ceived and sufficient time does not remain to 
conclude the testimony, the hearing ofiicer shaU 
either order the additional testimony taken by 
deposition or continue the hearing to a future 
date for which oral notice on the record is suffi- 
cient. 

(e) A continuance shall not be granted if 
granting it would prevent the case from being 
concluded within any statutory' or regulatory 
deadline. 



PARTIES 

(a) A party has the right to present evidence, 
rebuttal testimony, and argument with respect to 
the issues of law and policy, and to cross- 
examine witnesses, including the author of a 
document prepared by, on behalf of^ or for use 
of the Department and offered in evidence^ 

(b) A party shall have all evidence to be pre- 
sented, both oral and written, available on the 
date for hearing. Requests for subpoenas, depo- 
sitions, or continuances shaU be made within a 
reasonable time after their needs become evident 
to the requesting party. In cases when the hear- 
ing time is expected to exceed one day, the parties 
shall be prepared to present their evidence at the 
date and time ordered by the heanng officer or 
agreed upon at a prehearing conference. 

(c) The hearing ofticer shall send copies of all 
orders or decisions to all parties simultaneously. 
Any party sending a letter, exhibit, brief, memo- 
randum, or other document to the hearing officer 
shall simultaneously send a copy to all other 
parties. 

(d) All parties have the continuing responsibil- 
ity to notify the hearing otTicer of their current 
addresses and telephone numbers. 

(e) A party need not be represented by an at- 
torney. If a party has notified other parties of 
that party's representation by an attorney, aU 
communications shall be directed to that attor- 
ney. 

(f) With the approval of the hearing officer, any 
person may offer testimony or other evidence 
relevant to the case. Any nonparty otTermg tes- 
timony or other evidence may be questioned by 
parties to the case and by the hearing officer. 

(g) Before issuing a recommended decision, the 
hearing otlicer may order any party to submit 
proposed findings of fact and wntten arguments. 
Before issuing a linal decision, the Commissioner 
may order any party to submit proposed findings 
ot^ fact and written arguments. 



Statutorv Authority G.S. 5S-2-40{l); 58-2-50; 
58-2-55; 58-2-70; /50B-3Sfh). 

.0427 RIGHTS AND RESPONSIBILITIES OF 



Statutory Authority G.S. 58-2-40{l}: 58-2-50; 
58-2-55; 58-2-70; l50B-38(h). 

.0428 WITNESSES 

/Vny party may be a witness and may present 
v\itnesses on the party's behalf at the hearing. 
All oral testimon\ at the heanng shall be under 
oath or affinnation and shall be recorded. At the 
request ot a part\ or upon the hearing officer's 
own motion, the heanng otficer may exclude 
witnesses from the hearing room so that they 
cannot hear the testimony of other witnesses. 



Statutory Authority G.S. 58-2-40(1 j; 58-2-50; 
58-2-55; 58-2-70; 'l50B-38{h). 



7:1 NORTH CAROLINA REGLSTER .April 1, 1992 



15 



PROPOSED RULES 



.0429 EVIDENCE 

(a) The North Carolina Rules of F\idence as 
found in Chapter 8C of the General Statutes 
,i:o\em in all contested case proceedings, except 
as provided otherwise in this Section and G.S. 
150B-41. 

(b) I'he hearing officer may admit all evidence 
that has probative value. lrrele\ant, incompe- 
tent, immatenal, or unduly repetitious evidence 
shall be excluded. The hearing oflicer may, m 
his discretion, exclude any e\idence if its 
probative value is substantially outweighed by 
the nsk that its admission wiU require undue 
consumption of time or create substantial danger 
of undue prejudice or contusion. 

(c) Contemporaneous objections by a party or 
a party's attorney are not required in the course 
of a hearing to preserve the nght to object to the 
consideration of evidence by the hearmo officer 
in reaching a decision or bv the court upon judi- 
cial re\ie\v. 

(d) All e\idence to be considered in the case, 
including aU records and documents or true and 
accurate photocopies thereof, shall be offered and 
made a part of the record in the case. Hxcept as 
pro\ided in Paragraph (f) of this Rule, factual 
information or evidence that is not olTered shall 
not be considered in the determination of the 
case. DocumcntarN e\idence incorporated bv 
reference may be admitted only if the materials 
so incorporated are available for examination bv 
the parties. 

(e) Documentary evidence in the form of 
copies or excerpts may be received in the dis- 
cretion of the hearing otTicer or upon agreement 
ot^ the parties. Copies of a document shall be 
received to the same extent as the original docu- 



ment unless a genuine question is raised about 
the accuracy or authenticity of the copy or, under 
the circumstances, it would be unfair to admit the 
cop\ instead of the onginal. 

(0 The hearmg officer may take notice of 
ludicialh' cognizable facts bv entering a statement 
ot the noticed fact and its source into the record. 
Upon a timely request, an\' party shall be given 
the opportunity to contest the facts so noticed 
through submission of evidence and argument . 

(g) A party may call an adverse party; or an 
otflcer, director, managing agent, or employee of 
the Slate or any local government, of a public or 
pnvate corptiralion. or of a partnership or asso- 
ciation or body politic that is an adverse party; 
and may interrogate that party bv leading 
questions and may contradict and impeach that 
part\ on matcnal matters in aH respects as if that 
part\ had been called bv the adverse party. The 
ad\-erse p^irtv may be examined bv that party s 



counsel upon the subject matter of that party's 
examination in chief under the rules applicable 
to direct exarrunation, and may be cross- 
examined, contradicted, and impeached by any 
other party adversely affected by the testimony. 

Statutory Authority G.S. 58-2-40(1): 58-2-50; 
58-2-55; 58-2-70; l50B-38(h). 

.0430 OFFICIAL RECORD 

(a) The official record of a contested case is 
available for public inspection upon reasonable 
request. The heanng officer may, upon good 
cause shown and consistent with law, order part 
or all of an official record sealed. 

(b) The official record shall be prepared in ac- 
cordance with G.S. 150B-42. 

(c) Contested case hearings shall be recorded 
either by a recording system or a professional 
court reporter using stenomask or stenotvpe. 

(d) Iranscript costs incurred by the Depart- 
ment shall be charged to or apportioned equally 
among the party or parties requesting a tran- 
script. 

(e) Any other costs incurred by the Department 
when using a professional court reporter shall be 
charged to or apportioned equally among the re- 
questmg party or parties. 

(f) A 24-hour cancellation notice is required in 
all cases. The party or parties responsible for the 
cancellation shaU be liable for any cancellation 
fees. 

(g) Transcripts of proceedings during which 
oral evidence is presented will be made only upon 
request of a party. Transcnpt costs shall mclude 
the cost of an original for the Department. An 
attorney requesting a transcnpt on behalf of a 
party is a guarantor of payment of the cost. Cost 
shall be determined under supervision of the 
hearing olTicer who, in cases deemed to be ap- 
propriate by him, mav require an advance secu- 
ntv deposit to co\er the prospective cost. The 
security deposit shall be applied to the actual cost 
and any excess shall be returned to the party that 
submitted rt 

(h) Copies of tapes are available upon written 
request at a cost of five dollars ( ji5.0IJ) per tape. 

(i) Copies of Department heanngs tapes or 
Non-Department certified transcnpt s from those 
tapes are not part of the official record. 
Note: Rule 5.3(B) of the Rules of Profession^ 
Conduct permits an attorney to advance or 
guarantee expenses of litigation provided the cli- 
ent remains ultimately hable for such expenses. 

Statutory .-iuthoriiv G.S. 58-2-40(1): 58-2-50; 
58-2-55: 58-2-70; 'l50B-38(h). 



16 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



PROPOSED RULES 



SECTION .0600 - GENERAL DEPARTMENTAL 
POLICIES 

.0603 FACSIMILE COUNTERSIGNATURE NOT 
VALID 

If a countersignature of ari insurance policy is 
required pursuant to ti»e rctaliutoiv provir . ions ef 
G^ 5S 615(i). G.S. 58-33-60, the use by an 
agent of a facsimile signature for countersignature 
shall not constitute a legal signature and such 
facsimile countersignature ef policios is not valid. 

Statutory Authority G.S. 5S-2-40; 58-33-30(1); 
58-33-60. 

****************** 



No 



otice is hereby given in accordance with G.S. 
I50B-2I .2 that the A'.C. Department of Insurance 
intends to amend rule(s) cited as 1 1 NCAC 5 A 
.0501 - .0505, .0507 - .0508, .05/0. 

1 he proposed effective date of this action is July 
I, 1992. 

1 he public hearing will be conducted at 2:00 
p.m. on April 28. 1992 at the Fire and Rescue 
Division, Conference Room, III Seaboard Ave., 
Raleigh, N.C. 27603. 

Jxeason for Proposed Action: Amendments 
necessary to bring the procedures up to date with 
current industry standards regarding fire equip- 
ment, procedures and operations, and to make 
technical and clarifying changes. 



Co 



'Omment Procedures: Written comments may 
be sent to Tim Bradley, Fire and Rescue Division, 
III Seaboard Ave., Raleigh, N.C. 27603. Oral 
presentations may be made at the public hearing. 
Anyone having questions should call Tim Bradley 
at (919) 733-2142, or Ellen Sprenkel at (919) 
733-4529. 

CHAPTER 5 - FIRE AND RESCUE SERMCES 
DIMSION 

SUBCHAPTER 5A - FIRE AND RESCUE 

SECTION .0500 - INITIAL CERTIFICATION 

AND RF-INSPECTION OF FIRE 

DEPARTMENTS 

.0501 PURPOSE 

The purpose of this Section is to set forth the 
minimum requirements that a fu'e department 
must meet in order to qualify for eligibility for 
death benefits under G.S. 143-166.1 and the 



North Carolina Firemen's Pension Fund under 
G^ 118 38 G.S. 58-86-25 and for initial recog- 
nition in insurance premiums for a responding 
fire department. Upon meeting these require- 
ments, a fire district will be given a rating of 
"9S". 

Statutory Authority G.S. 58-2-40; 58-86-25. 

.0502 QUALIFICATIONS 

All fire departments previously certified as of the 
effective date of this Rule are automatically cer- 
tified and hereby declared eligible for benefits 
under 118 38 G.S. 58-86-25 and G.S. 143-166.1. 



Statutory Authority G.S. 
143-166.1. 



58-2-40; 58-86-25; 



.0503 ESTABLISHMENT OF FIRE 
DEPARTMENT 

All fire departments wishing to become quali- 
fied aft or the e ffecti' i -e 4*ri« ef thooo Rules shall 
meet the foUowing criteria; 

(1) The fire department shall be incorporated 
under Chapter 55A of the General Statutes 
ef \ki^ State ei North Carolina or be oper- 
ated by a city, county, or sanitary district as 
a division of that govermnental unit. 

(2) If the fire department is incorporated, it 
shall operate under a contract with either a 
city, county, or sanitary district or any 
combination thereof 

(3) Boundaries defming the area of responsi- 
bility shall be established by a County Board 
of Commissioners for areas outside munici- 
palities pursuant to G.S. 153A-233. 

(4) The fire department shall provide the De- 
partment of Insurance with a map and de- 
scription of iU initial or revised fire district. 

Statutory Authority G.S. 58-2-40; 58-86-25; 
143-/66. J. 

.0504 PERSONNEL 

44^ fife dopartmL'nt ohall have a minimum »f 
+* firofightoro aft4 f . hall keep a roctor containing 
th* namtji i . social f . ecurity iiumbL'rfi ef all perr i on 
fwlr attonJanc e rucordf i f4" firomon at- fifes a«4 
other omorgonciL '; ' . . a* weH- as attondunce records 
at buiinef i r i meotingo afhi training mooting:: . , in 
addition te Ae +0 lirofiglitors, Ae fife dopartmont 
shall havo ^ traflio control por t ions a* momborL i . 

Upon initial certification, the fire department 
shall have a minimum of 20 personnel, with two 
designated as traffic control and 18 designated as 
firefighters. At the time of re-inspection, a fire 
department shall mamtain 20 personnel or show 
throuch documentation that an averace of 12 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



17 



PROPOSED RULES 



persons has'e responded on each of the last 20 
structure tires. A roster of personnel containing 
names, social secuntv numbers, and attendance 
of busmcss meetmgs and traimng meetings shah 
be kept. 

Statutory Authority G.S. 58-2-40; 58-S6-25; 
143-166.1. 

.0505 TRAINING .\ND MEETING 
REQUIREMENTS 

All members shall complv with the training re- 
quirements of G.^ \\% 38. G.S. 5S-86-25. ,\11 
fire departments shall provide 4 four hours 
monthly of drills and majtingo. meetings each 
month, for a total of 48 hours per \ear. t'ach 
fireman shall attend at least 36 hours of drills and 
meetings in each calendar year. 



Statutory Authority G.S. 58-2-40: 
1 43- 166. 1. 



58-86-25: 



.0507 RECORDS .\ND DOCLMENTS 

In addition to personnel records, records shall 
be kept on dates, times and locations of emer- 
gencies, inventor," of equipment, and mainte- 
nance of apparatus. The following documents 
shall be submitted to the Department of Insur- 
ance: roster, charter, service test report, current 
map and description, an inventor.' of protective 
clothing uf necessani. and \'enfication from the 
countv approvmg the fire distnct boundaries. 

Statutoiy Authority G.S. 58-2-40; 58-86-25; 
143-166.1. 

.0508 APP.ARATLS 

(a) Pumper. 

(Ij ftft* The fire department shall have an 
approved pumper (automotive fire appa- 
ratus equipped with a fire pump and 
tank). To be approved, the fire depart- 
ment pumper must be certified by 
Underwriters Laboratories, Inc., and con- 
structed in accordance with the National 
Fire Protection Association pamphlet 
1901 - Standard for Automotive Fire Ap- 
paratus. The apparatus shall not be 
loaded beyond limits certified by the 
"Gross Vehicle Weight" label attached to 
' ■ ohiclo. Xef the \ chicle: nor shall the 
\ehicle be modified in a manner ' i vhich 
that would invalidate this certification. 

(2) The pump shall have a rated capacity of 
not less than 500 gallons per minute at 
150 pounds per square inch net pump 
pressure. 



(3) The pumfx;r shall be equipped with at 
least a W^ 500 gallon tank. (Rocom 
mondod *«e - %^ gallons.) 

(4) At the timo ©f tfes qualification inspection, 

^i 13^^^^^^ ^j^^^^^ ^^j^^i ^^^^^^ i^^^^ ^^^^^^^^^^ ^^^^^^^^ 

L .L. Corttfication, Ae fife dupartmont 
shall conduct a standard sonico tert »ft4 
shsH- submit the results &f the test te the 
14fe <fe Rescu e ScT i icos Di' i ision ef the 
N.C. Department »f Insurance. ?4*e ©e- 
portm i^ nt ef Insurance r e commends tl»t 
the standard sop i ice te&t be hh* annually. 
A complete and accurate service test must 
have been performed on the "first re- 
sponding" pumper durmg the 12-month 
penod before the inspection. If the 
pumper has been purchased as new within 
the 12-month penod before the in- 
spection, the U.L. Certificate meets this 
requirement. 

(b) Tanker. 

(1) fee The fire department shall have a mo- 

torized tank truck of at least 1000 gallons 
capacity or at least enough to equal 1500 
gallons total for pumper and tanker. It is 
recommended that the capacity not ex- 
ceed 1500 gallons. 

(2) Tanlcor The tanker shall be equipped with 

a suitable moans fe»f the necessary hose for 
fiUing the tank and transferring water to 
the pumper. 

(3) Tanlcors, The tanker, when fully loaded, 

shall not exceed the Gross Vehicle Weight 
limits as certified on the label attached to 
vehicle. >^ the vehicle: nor shall the 
vehicle be modified m a manner which 
that would invalidate this certification. 
.-VU tankers shall moot applicable pro 
visions stated t» NT'PiV 1 90 1 concoming 
tasir baffling, be appropriateh' baffled. 

(c) Equipment. The following shall be carried 
on responding fire department \'ehicles: 

( 1 ) Pumper: 

(A) Pump e r The pumper shall be equipped 
with 2 - 150' 1-1 2' hose lines with fog 
nozzles attached; 

(B) One booster reel and one pre-connected 
hose or three pre-connected hose hnes: 

(C) Suction hose - size necessar\' to flow the 
capacity of pumper - 2 - 10' sections; 

(D) Two Four OS HA approved self- 
contained breathing apparatus in good 
working condition; 

(E) Protect ive OSll.A approved protective 
clothing for ail lirefighters mcluding hel- 
met, coat, pants, boots, and glo\'es; and 
reflectis'e clothing and recommended hel- 
met for traffic control personnel: 



18 



■1 NORTH CAROLINA REGISTER April 1, 1992 



PROPOSED RULES 



(F) 4- -One 12' roof ladder; 

(G) 4- - One 24' extension ladder; 
(H) 4- -One axe; 

(I) 4- One claw tool (Halligan Tool can re- 
place claw tool and crowbar); 

(J) 4- One crowbar ( Halligan Tool can re- 
place crowbar and claw tool); 

(K) 4- One pike pole; 

(L) 3 ol e ctric Two portable hand lights; 

(M) 100 feet of 1/2" rope; 

(N) 3 Two shovels; 

(O) 3 Two Class B-C portable extinguishers; 

(P) 4- One First Aid kit; and 

(Q) 4- One bolt cutter. 
(2) Tanker. Tanlcor The tanker shall be 
equipped with necessary suction hose for 
filling tank and hose for transferring water 
to pumper. 

Statutory Authority G.S. 58-2-40; 58-86-25; 
14 3- 1 66. 1. 

.0510 INSPECTION 

Personnel from the Fire and Rescue Services 
Division of the North Carolina Department of 
Insurance shall perform a field inspection to de- 
termine whether the initial certification require- 
ments have been met. Any persons or fire 
departments needing more information on ob- 
taining certification under this Section should 
contact: 

Fire and Rescue Services Division 
N.C. Department of Insurance 

1 1 1 Seaboard Avenue 

Raleioh, North Carolina 35444- 27603 

(919) 733-2142 

Statutory Authority G.S. 58-2-40; 58-86-25; 
1 4 3- 1 66.1. 

'k-k-k'k-k'k-k'k'k'k-k'k'k-k^'k-k-k 



lyotice is hereby given in accordance with G.S. 
I50B-2I .2 that the N.C. Department of Insurance 
intends to adopt rule(s) cited as 1 1 NCAC 8 
.0911. 

1 he proposed effective date of this action is July 
I, 1992. 



Re 



Th 



he public hearing will be conducted at 9:00 
a.m. on April 21, 1992 at the Manufactured 
Housing Board, 410 N. Boy Ian Avenue, Raleigh. 
N.C. 27611. 



reason for Proposed Action: To adopt testing 
requirements for salesmen of manufactured hous- 
ing. 



Co 



'Omment Procedures: Written comments may 
be sent to Owen Tharringlon, c/o Manufactured 
Housing Board, P.O. Box 26387, Raleigh, N.C. 
2761 1. Oral presentations may be made at the 
public hearing. Anyone having questions should 
call Owen Thanington at (919) 733-390/ or Ellen 
Sprenkel at (919) 733-4529. 

CHAPTER 8 - ENGINEERING AND BUILDING 
CODES 

SECTION .0900 - iVIANLFACTURED HOUSING 
BOARD 

.0911 SALESMAN EXAM; TEMPORARY 

LICENSE; LICENSE TRANSFER; FEES 

(a) A salesman's license shall be issued to any 
apphcant upon receipt bv the Board of a properly 
executed application, receipt of the apphcant of 
a passing grade (70 percent of a possible 100 
percent) on a written examination administered 
by the Board, and qualification of the applicant 
for licensure, except as follows: 



( 1 ) Those persons 



holdino 



a Registered 



I lousing Speciahst certification from the 
North Carolina Manufactured I lousing 
Institute on or before June 30, 1992, are 
exempt from the examination require- 
ment. 

(2) Anv person holding a valid salesman's lir 
cense on or before June 30. 1992, may 
renew his license each year until July J_^ 
1994, without examination, if he meets 
the requirements for license renewal and 
his renewal application is properly exe- 
cuted. If he allows his license to lapse, 
he must apply for a license under new h^ 
cense application requirements. 

(3) Any salesman who has been tested and h^ 
censed under this Section and whose h- 
cense has lapsed is not required to be 
re-tested if he re-applies for licensing 
within 12 months after the expiration of 
the lapsed license. 

(b) A temporary salesman's license will be is- 
sued for a period of 90 davs to a person upon 
request of the employing dealer. The holder of 
a \alid salesman's or temporan,' salesman's li^ 
cen.se is authorized to sell manufactured homes 
only for the dealer with whom he is employed 
as shown on the application. A temporary 
salesman's license shall not be renewed. 

(c) A salesman's license is valid only as long 
as the person remains employed with the dealer 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



19 



PROPOSED RULES 



shou'n on the application. A salesman must ap- 
ply for a new salesman s license if he changes or 
transfers from one dealer to another. In heu of 
appKmg for a new license, the salesman may 
transfer his license from one dealership to an- 
other upon application from the new dealer and 
the salesman and approyal of the iJoard. When 
a salesman lea\"es emplo\ment with a dealer, the 
dealer shall report this fact to the Board withm 
10 days thereafter. 

(d) The fee for a salesman's or temporary 
salesman s license shall be twenty five doUars 
($25.00). "I he temporary salesman's license fee 
shall apply toward the salesman's license fee if 
both hcenses are issued in the same License year. 
The fee for a salesman's license transfer applica- 
tion shall be 'fifteen dollars (S15.0(1). 

Statutoty Authority G.S. 143-143.10; I43-I43.il. 



i\ otice is hereby given in accordance with G.S. 
I50B-2I .2 that the A'.C. Department of Insurance 
intends to amend nde(s) cited as 1 1 S'CAC 10 
.0602 - .0603, .1601; and repeal rule(s) cited as 
II NCAC 10 .0601. 

1 he proposed effecti\-e date of this action is July 
I. 1992. 

1 he pubhc hearing will be conducted at 10:00 
a.m. on April 21, 1992 at the Dobbs Building, 3rd 
Floor Hearing Room. 430 \. Salisbury Street, 
Raleigh. A'.C. 27611. 



R 



easons for Proposed A ctions: 



11 NCAC 10 .0601 

Statute. 



Language is contained in the 



II NC.\C 10 .0602 - .0603, .1601 - To make tech- 
nical corrections. 



Co 



omment Procedures: Written comments may 
be sent to Charles Swindell, Property and Casu- 
alty Dh'ision, 430 .V. Salisbury Street, Raleigh, 
N.C. 27611. Oral presentations may be made at 
the public hearing. Anyone having questions 
should call Charles Swindell at (919) 733-336S. 

CHAPTER 10 - PROPERTY .\ND C.\SLALTY 
DIMSION 

SECTION .0600 - CONSENT TO RATE 

.0601 GENERAL INFORMATION 



P^f thos e fo«§ &f infiurance subj e ct te the pf©- 
visions ef Articloo 13B, 13C, aft4 ^ »f Chaptor 
■^ ©f ri*e Gonoral Statut e s ef North Carolina a 
F*te i» OKCOSs ef tt»t- promulgatod by- tfee North 
Carolina Pi.atu Bureau, Bf rating organiaation »* 
6k4 hf » company »«• ite own behalf f»ay be 

vrritton consc ' nt ef tfee insured. aft4 wkb proper 
notice te aft4T ' . ' ■ horo roquirod by- statute, ap- 
proval &i y*e commissioner. 



Statutory A uthority 
5S-131.39 (c). 



G.S. 58-124.23 (b); 



.0602 CONSENT TO RATE PROCEDURES: 
RATE BLRE.\L COVERAGES 

(a) An application to effect consent to rate on 
a specific risk of "ess e ntial" covorago, a* identi 
6e4 ift Rc ' uulation .Q ' 102 ef ^m% Chapter, coverage 



subject to Article 36 of General Statute Chapter 
?S. m excess of the rate promulgated by the 
North Carolina Rate Bureau, shall mclude, but 
not be Limited to, the following; 



(1) 



(2) 



(3) 
(4) 



a description of the insurance proposed, 
including primary and excess limits, the 
amount of coverage, the property insured, 
the deductible and any other factor used 
for rating, where applicable; 

the rate and premium ' . shich that would 
be charged without application of consent 
to rate; 

the proposed rate and premium; 

the percent increase. The rate to be 
charged wiU be presumed reasonable if it 
does not exceed 250 percent of the rate 
' . vhich that would be charged without ap- 
plication of consent to rate. Any pro- 
posed rate in excess of 250 percent must 
be explained fully and may be disap- 
proved by the commissioner. (This is not 
required for and does not apply to ^^«s- 
s e ntial" automobile nonfleet private pas- 



senger motor vehicle physical damage 
msurance); 

(5) a statement that the rate charged does not 
exceed the rate which that would be ap- 
plicable if the applicant had been charged 
550 percent of the rate with no driving 
r e cord Safe Driver Incentive Plan points. 
Any proposed rate in excess of 550 per- 
cent must be explained fuUy, submitted 
individually, and may be disapproved by 
the Commissioner. (7~his is required for 
"ossontial" automobile nonfleet private 
passenger motor \ehicle physical damage 
insurance only): 

(6) the names and addresses of the insurer, 
the writing agent, and the insured; 



20 



7:1 NORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



(7) the effective date of the proposed rate; 

(8) the policy period; 

(9) the policy number; 

(10) the reason for the surcharge may be re- 
quired; and 

(11) a letter signed by the insured acknowl- 
edging and consenting to the proposed 
rate (not required to be submitted to the 
Commissioner for "oooontial" automobil e 
nonfleet private passenger motor vehicle 
physical damage insurance), if coverage 
for the specific risk written on consent to 
rate is available through a residual market 
(FAIR Plan, Beach Plan, North Carolina 
Reinsurance Facility, North Carolina 
Workers Compensation Insurance Plan), 
a statement signed by the insured ac- 
knowledging that fact must also be sub- 
mitted. 

AH such applications must be forwarded directly 
to the Commissioner for approval. 

(b) Such applications involving non-standard 
automobile physical damage insurance may be 
recorded on a form approved by the Commis- 
sioner and must be forwarded at frequent inter- 
vals to the Commissioner for approval. A letter 
signed by each insured acknowledging and con- 
senting to the proposed rate shall be retained in 
the insurer's office and be made available to the 
Commissioner upon request. A separate letter 
with the insured's signature must be obtained for 
each policy period. 

(c) /Vll applications for approval of consent to 
rate received more than 90 days after the effective 
date of the proposed rates wlU be disapproved 
and construed as effective at the rates ' ■ ' ■■ hich that 
would be charged without apphcation of consent 
to rate on the effective date. 

Statutory Authority G.S. 58-2-40 (J); 58-36-30 
(b). 

.0603 CONSENT TO RATE PROCEDURES: 
COMMERCIAL COVERAGES 

(a) /Vn application to effect consent to rate on 
a specific risk of "non osoontial" cov e ragL', as 
idontifiod m Rulo .0103 »f (4*i* Chapter, coverage 
subject to Article 40 of General Statute Chapter 
58, in excess of the rate promulgated by a li- 
censed rating organization or filed by a company 
on its own behalf shall include, but not be limited 
to, the following: 

(1) a description of the insurance proposed, 
including primary and excess limits, the 
amount of coverage, the property insured, 
the deductible and any other factor used 
for rating, where appUcable; 



(2) the rate and premium ' ■ ' i hich that would 
be charged without application of consent 
to rate; 

(3) the proposed rate and premium; 

(4) the percent increase. The rate to be 
charged will be presumed reasonable if it 
does not exceed 250 percent of the rate 
which that would be charged without ap- 
plication of consent to rate. Any pro- 
posed rate in excess of 250 percent must 
be explained fully and may be rotumod 
disapproved by the Commissioner; 

(5) the names and addresses of the insurer, 
the writing agent, and the insured; 

(6) the effective date of the proposed rate; 

(7) the policy period; 

(8) the policy number; 

(9) the reason for the surcharge; and, 

(10) a letter signed by the insured acknowl- 
edging and consenting to the proposed 
rate (not required to be submitted to the 
commissioner for "non oosontial" auto- 
mobile physical damage insurance). If 
coverage for the specific risk written on 
consent to rate is available through a resi- 
dual market (FAIR Plan, Beach Plan, 
North Carolina Reinsurance Facihty, 
North Carolina Workers Compensation 
Insurance Plan), a statement signed by the 
insured acknowledging that fact must also 
be submitted. 

All such applications must be forwarded directly 

to the commissioner. 

(b) Such applications involving non-standard 
automobile physical damage insurance may be 
recorded on a form approved by the commis- 
sioner and must be forwarded to the commis- 
sioner at frequent intervals. A letter signed by 
each insured acknowledging and consenting to 
the proposed rate shall be retained in the insurer's 
office and be made available to the Commis- 
sioner upon request. 

(c) All applications for consent to rate received 
more than 90 days after the effective date of the 
profKJsed rates will be rejected and construed as 
effecti\'e at the rates which that would be charged 
without application of consent to rate on the ef- 
fective date. 

Statutory Authoritv G.S. 58-2-40 (I); 58-40-30 
(c). 

SECTION .1600 - PROSPECTIVE LOSS COSTS 
FILINGS 

.1601 PURPOSE; SCOPE; APPLICABILITY 

(a) Tliis Section specifies the system under 
which rating organizations and their participating 



7:1 NORTH CAROLINA REGISTER April I, 1992 



21 



PROPOSED RULES 



insurers that elect to adopt a prospective loss cost 
system will operate. Under this system, rating 
organizations shall not develop or file advisory 
fmal rates; but shall develop and file advisor,' 
prospective loss costs and supporting actuarial 
and statistical data. Each insurer must inde- 
pendently and individually determine and file the 
rates it will use. Rating organizations will con- 
tinue to develop and file rules, relativities, and 
supplementary rating information on behalf of 
their participating insurers. 

(b) 11 NCAC 10 .1603 applies when a rating 
organization files advisory prospective loss costs. 
1 1 NCAC 10 .1604 applies when a rating organ- 
ization tUes supplementary rating information. 
11 NCAC 10 .1603 and 11 NCAC 10 .1604 both 
apply when a rating organization files both advi- 
sory prospective loss costs and supplementary 
rating information. Each of these submittals 
shall be treated separately because different pro- 
cedures win apply. 

(c) Nothing in this Section requires rating or- 
ganizations to cease fding advisory rates or pre- 
vents their participating insurers from adopting 
such rates. Rating organizations that desire to 
fde rates shall complete a rate fding questionnaire 
according to 11 NCAC 10 .1107. 

(d) This Section does not apply to nonfleet 
private passenger motor vehicle, homeowners, 
farmov i 'noro. or dwelling fire insurance. 

Slatuton- Authority G.S. 58-2-40: 58-36-15; 
58-37-35: 58-40-30; 58-41-50; 58-45-45; 
58-46-55. 

•k'k'k'k'k'k-k-k-k'k-k'k'k'k'k'k'k'k 



No 



otice is hereby given in accordance with G.S. 
150B-21 .2 that the N.C. Department of Insurance 
intends to amend rule(s) cited as 1 1 NCAC 12 
.0552. 

1 he proposed effective date of this action is Julv 
I, 1992. 



Th 



he public hearing will be conducted at 10:00 
a.m. on April 21 , 1992 at the Dobbs Building. 3rd 
Floor Hearing Room, 430 N. Salisbury Street, 
Raleigh, N.C. 27611. 

Ixeason for Proposed .Action: Clarify coverage 
required under insurance contracts. 



Co 



presentations may be made at the public hearing. 
Anyone hai'ing questions should call Sue G off at 
(919) 733-5060 or Ellen K. Sprenkel at (919) 
733-4529. 

CHAPTER 12 - LIFE AND HEALTH DIVISION 

SECTION .0500 - ACCIDENT AND HEALTH: 
GENERAL NATURE 

.0552 TEMPORONLANDIBLLAR JOINT 
DYSFUNCTION 

Pohoioo pro' i 'iding Durgioal, modioal aft4 i«- 
hospital b e n e fits msy ftet fee oxcludod vrh e n 
treatment fof temporomandibular ioint 
dyr i function is caus e d by disoaoo »f accidont. 
Ho wovor, tr e atment perform e d by prosth e sis 
placed directly e«- the teeth fway- be e xcluded. 
Pohcies providing surgical , medical, or in- 
hospital benefits may not exclude benefits for 
surgical treatment of temporomandibular joint 
dysfunction (I'MJ) nor Limit benefits for surgical 
treatment of T.MJ any more restnctivelv than for 
surgery on any other joint of the body; provided, 
however, nonsurgical treatment of T.MJ ma\- be 
excluded or may be subject to a lifetime maxi- 
mum dollar amount. 

Statutory Authority G.S. 58-2-40; 58-3-130; 
58-51-1; 58-51-95; 58-63-15(7); 58-65-85. 



I\ Otice is hereby gh'en in accordance with G.S. 
I50B-2I.2 that the N.C. Department of Insurance 
intends to adopt rule(s) cited as J J NCAC 12 
.1101 - .1119. 

1 he proposed effective date of this action is July 
1, 1992. 

1 he public hearing will be conducted at 10:00 
a.m. on April 16, 1992 at the Dobbs Building, 3rd 
Floor Hearing Room, 430 N. Salisbury Street, 
Raleigh, N.C. 27611. 

IXeason for Proposed Action: To implement 
legislation enacted by the 1991 General Assembly 
which became effective January 1 , 1992. 



Co 



'Omment Procedures: Written comments may 
be sent to Sue Gaff Life and Health Division. 430 
N. Salisbury Street, Raleigh, N.C. 27611. Oral 



omment Procedures: Written comments may 
be sent to Leonard Wood, Department of Insur- 
ance, 401 Glenwood Ave., Raleigh, N.C. 27611. 
Oral presentations may be made at the public 
hearing. Anyone having questions should call 
Leonard Wood at (919) 733-9154 or Ellen 
Sprenkel at (919) 733-4529. 



->! 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



PROPOSED RULES 



CHAPTER 12 - LIFE AND HEALTH DIVISION 

SECTION .1 100 - MLLTIPLE EMPLOYER 
WELFARE ARRANGEMENTS 

.1101 PURPOSE AND SCOPE 

The purpose of this Section is to implement the 
provisions of Article 49 of General Statute 
Chapter 58 and to regulate the issuance of a li^ 
cense and the operation of a MF.WA as pro\ided 
m that Article. The definition of 'multiple em- 
plover welfare arrangement" or "Mf'WA" con- 
tained in G.S. 58-49-30(a) is incorporated herein 
by reference. 

Statutorv Authority G.S. 58-2-40(1); 58-49-30; 
58-49-35; 58-49-40; 58-49-50; 58-49-55; 
58-49-60; 58-49-65. 

.1102 GENERAL ELIGIBILITY 

(a) Each MEWA shall provide to the Com- 
missioner adequate documentation that the ex- 
emption under Section 501(c) of the Internal 
Revenue Code has been granted, or that the 
MEWA will operate solely for the benefit of the 
members of the .MEWA. Any profits from the 
operation of the MEW/V shall be invested in se- 
curities as allowed by G.S. 58-7-160 through G.S. 
58-7-200. and the interest or other profits accrued 
or received thereon shall be used to provide rate 
stability or provide other such benefits for the 
members to which the trustees and the Commis- 
sioner agree; and the trust agreement shall so 
state. 



(b) Each MEWA shall be established bv a trade 
association, industp,' association, or professional 
association of employers or professionals. The 
association shall not be a combination of trades, 
industries, or professions; nor shall there be a 
combination within the trades, industries, or 
professions. 



(c) As used in this Rule: 



01 



'industPv' association" means member 



employers who are in the same major 
group code, as defined by the Standard 
Industrial Classification Manual issued bv 
the Executive Office of the President. Of- 
fice of Management and Budget: unless 
restncted bv Subparagraph (c)(2) or (3} 
of this Rule. 
(2) ''Professional association" means member 
employers who are of the same type of 
protcssion. such as ph\'sicians. dentists. 
accountants, lawyers . or architects; but is 
not limited to those professions. How- 
ever, the profession must be one that is 
recognized by the required licensing 
agency. 



(3) "Trade association" means member em- 
plovers who are in the same type of trade, 
such as plumbers or electricians; and any 
others that are trade designations as re- 
cognized bv the required licensing agency, 
(d) The feasibility study required by G.S. 
58-49-50(7) shall disclose all matenal assump- 
tions. 

Statutory Authority G.S. 58-2-40(1); 58-49-40; 
58-49-50. 

.1103 FILING REQLIREMENTS 

(a) All communications and tilings must be 
made with the Compliance Officer, Technical 
Services Group, North (3arolma Department of 
Insurance. P.O. Box 26387, Raleigh. N.C. 27611. 
To applv for licensure, in addition to the infor- 
mation required bv G.S. 58-49-50, the following 
items pertaining to the MEWA must be submit- 
ted: 

( 1) Eorm MEWA-1 entitled "Application for 
License for .Multiple Employer Welfare 
Arrangement (.ME'WA):" 

(2) Form .MEWA-2 entitled "Financial 
Statement", which shall contain the in- 
formation required bv G.S. 58-49-50(8); 

(3) Signed and notany.ed biographical affida- 
\its bv all trustees of the .MEWA on 
form M[:WA-3 entitled "Biographical 
Questionnaire", which shall contain in- 
formation to enable the Commissioner to 
determine if such persons satisfy the crite- 
na specified in G.S. 58-49-40(e): 

(4) A complete list of names, addresses and 
telephone numbers of participating em- 
ployers and the number of employees 
covered by the MEWA: and 

(5) A statement of the reasons for applying for 
a North Carolina MEWA license; a de- 

iro- 
its 



scnption of exactly how the .MEWA ] 
poses to develop and supcr\ise 
operations in North Carolina; the name, 
title, and quahl'ications of the person who 
will be responsible for the .MEWA's op- 
eration in North Carolina (the managing 
general agent if the .MEWA is domiciled 
outside of North Carolina): and the lo- 
cation of and a descnption of the office 
facilities that will be pro\ided bv the 
MEWA in North Carohna. 

(b) .Ml forms mav be obtained from the Com- 
pliance OtTicer. E\'er\' appUcation must contain 
a certification that any changes to the infonna- 
tion required bv G.S. 58-49-50 and this Rule 
shall be reported to the Commissioner. 

(c) During the pendenc\- of an application, the 
.MEWA shall keep all required inlbnnalion. 



7:1 NORTH CAROLIN.A REGISTER April I, 1992 



23 



PROPOSED RULES 



statements, documents, and materials current and 
factual. 

(d) \n application for a license is not complete 
until the MtW'.A has satisfied the Commissioner 
that the .\1I:WA is in compliance \Mth all of the 
requirements of Article 49 of General Statute 
Chapter 58 and this Section. The Commissioner 
is not required to process an mcomplete apphca- 
tion. 

(e) All financial information required bv G.S. 
58-49-50 and this Section shall be prepared m 
accordance with statutory' accounting principles. 

(J]_ Any change in the information required bv 
Article 49 of' Cicneral Statute Chapter 58 or by 
this Section shall, unless otherwise specified in 
that Article or in this Section, be reported to the 
Commissioner within two business davs after 
such change. 



Statuton- Authohtv G.S. 58-2-40(1); 5S-49-40; 
58-49-50: 58-49-60. 



determined bv comparing those charged to other 
MEW As in North Carolina. 
(d) A .\1 l:\VA shall give the Commissioner 
written notification of any proposed change to a 
management or admimstrative contract at least 
45 davs before the effective date of such change. 



Statuton' 
58-49-50. 



.Authority G.S. 58-2-40(1); 58-49-40; 



.1106 ANM AL REPORT 

A request for an extension of time to file an 
annual report must be made in writing and fded 
with the Department no later than 15 days . before 
the due date of the annual report. Anv request 
for extension received less than 1 5 davs before the 
due date of the annual report shall be denied ex- 
cept m instances of death or disabHitv of kev 
personnel or destruction of records by fire or bv 
another event clearly out of the .MliWA's con- 
trol. 



.1104 FINANCIAL 

(a) A MEW'.A mav participate in a cash man- 
agement program as long as the MEW A has di- 
rect access to its funds at all times and the 
depositor\ or custodian maintains a separate ac- 
counting for each account. The depository or 
custodian must be a solvent national or state 
bank. sa\ings and loan association, or trust 
companw 

(bl No surplus note(s) or the interest thereon 
shall be paid or repaid without the specific writ- 
ten approval of the Department. If there is more 
than one surplus note, each note shall ha\e its 
own unique identification number in the upper 
left hand comer of each page of the document. 



Statuton' .4 uthority 
58-49-60. 



G.S. 58-2-40(1); 58-49-40; 



Statutory 
58-49-60. 



.Authority G.S. 58-2-40(1); 58-49-40; 



.1 105 ADMINISTR.\TI\ E, PROVIDER, AND 
MANAGEMENT CONTRACTS 

(a) As used m this Rule, ''fees" means anv 
compensation, including but not limited to, cash 
or other assets of a Ml W'A that are transferred 
for either contracted or noncontracted services 
that are rendered to the sponsonng association 
or the MEWA. 



(bl A ME\\"A is prohibited from pa\ing any 
fees, other than for reimbursement of specific 
expenses, to its sponsonng association unless the 
services rendered to the .MEW .A are available to 
the MEWA from persons other than the spon- 
soring association. 

(c) Ehe fees for such services shall not be in 
excess of what would be charged in an arms 
length transaction. Reasonable fees may also be 



.1107 EXAMINATION BV THE DEPARTMENT 

If the Department determines that the records 
of a MEWA are not adequate to make a deter- 
mination of sohency or insolvency, the Depart- 
ment may take any action. administrati\"e or 
otherwise. a\ailable to the IX-partment as if the 
MEWA v.ere insolvent. 

Statuton- .Authority G.S. 58-2-40(1); 58-49-40; 
58-49-55: 58-49-65. 

.1 108 POWER OF ATTORNEY 

A power of attorney appointing an indi\idual 
to receive service of legal process must be sub- 
mitted bv e\-er\- MEWA on E'orm MEW.\-4 en- 
titled "Po^\^er of Attomev". Such indi\idual shall 
be a resident of North Carolina and either a cor- 
porate official of the MEWA or the MEW.A s 
managing general agent for the State; and must 
be readily accessible and available for senice. 



Both the residential and business addresses of 
such mdisidual must be provided. .Any change 
in the power of attomev after issuance of the 
MEWA s license must be reported to the Com- 
missioner within two business davs after the et- 
fective date of the change. 



Statuton- .Authority G.S. 58-2-40(1); 58-16-30; 
58-49-40: 58-49-50. 

.1109 FIDELITV BOND 

The fidelity bond required bv G.S. 58-49-50(5) 
shall be issued onlv bv a surctv compan\' licensed 



24 



7:1 NORTH CAROLIN.A REGISTER .April I, 1992 



PROPOSED RULES 



to transact insurance in North Carolina. The 
bond shall be in an amount equal to no less than 
10 percent of the funds or assets of the VIEWA 
that are managed or handled annually, subject to 
the minunum and maximum amounts stated in 
G.S. 58-49-50(5). Ihe MEWA shall notify the 
Commissioner of anv change to the bond, in- 



cluding termination, change in bond amount, 



or 



change in bonded \1E\VA employee, within two 
business days after the effective date of the 
change. 



30-day period; and upon receipt of the ad- 
ditional information, the claim shaU be paid 
within 30 days of receipt of the additional 
information. 
(3) If the claim is denied, the MEWA shall 
provide the reason or reasons for the denial 
in writing to the claimant and the claimant's 
health care provider. 

Statutory Authority G.S. 58-2-40(1); 58-49-40; 
58-49-50. 



Statutory Authority G.S. 58-2-40(1); 58-49-40; 
58-49-50. 

.1110 SALES AND MARKETING 

.Any person who solicits memberships for a 
MEWA shall solicit only eligible member em- 
ployers of the sponsoring association: and only 
if that person is appointed to solicit bv the Board 
of Trustees of the MF.WA. I'he sponsoring as- 
sociation shall provide the representative with a 
list of eligible member employers that are not in 
the .MEWA. 



Statutory Authority G.S. 58-2-40(1); 
58-49-50. 



58-49-40; 



.1111 DISCLOSLRE 

Anv person who advertises or solicits coverage 
on behalf of a .MIAVA or who in any manner 
secures, helps, or aids in the planning or admin- 
istration of coverage with anv MEWA, shall 
prominently disclose in writing to every employer 
being sohcited for participation the information 
specified in OS. 58-49-25 and 58-49-40(b): and 
provide such employer with a statement, if ap- 
plicable, as to which provisions of North 
Carolina insurance statutes and rules, such as 
mandated benefits, freedom of choice of pro\id- 
ers, continuation or conversion privileges, pre- 
existing conditions limitations, or premium rate 
revision guarantees, are not afforded by the 
MEWA. 



Statutoiy Authority G.S. 58-2-40(1); 58-49-25; 
58-49-40; 58-49-50. 

.1112 CLAIMS PAYMENTS 

In order to assure that aU valid claims for pay- 
ments for benefits provided are paid within a 
reasonable time, the following standards apply: 
m Each .Mt-WA shaU pay within 30 days of 
receipt by the MI-W.\ or its administrator. 
if applicable, all valid claims for benefits. 
(2) If the .MEWA requires additional informa- 
tion, the MEW.-X shall request such addi- 
tional information in wnting within the 



.1113 DISSOLUTION 

Anv application to dissolve a MEWA must be 
made on Form MEWA-5 entitled "Application 
for Dissolution". An application for dissolution 
will not be considered to have been received by 
the Commissioner until it has been completed to 
his satisfaction. Such apphcation shall be filed 
with the Commissioner at the same time the 
MEWA files articles of dissolution with the Sec- 
retary of State of North Carolina, a copy of 
which articles shall accompany the application. 

Statutory Authority G.S. 58-2-40(1); 58-49-40; 
58-49-50. 



1114 DEFINITIONS 

As used in this Rule and in 11 NCAC 12 .1115, 
1 NCAC 12 .1116, and 11 NCAC 12 .1117, the 



following terms have the meanings ascnbed to 

them: 
( 1) "Claims accrued" means that portion of 
claims incurred on or prior to the valuation 
date that result m liability of the MEWA for 
the payment of benefits for medical ser\'ices 
that ha\e been rendered on or prior to the 
valuation date, and for the payment of ben- 
efits for days of hospitalization and davs of 
disability that have occurred on or prior to 
the valuation date, that the MIAVA has not 
paid as of the \aluation date, but for which 
it IS liable, and will ha\e to pay after the 
valuation date. This liability is sometimes 
referred to as a liabihty for accrued benefits. 



(2) "Claims reported" means when a MEWA 
has been informed that a claim has been in- 
curred, if the date reported is on or pnor to 
the valuation date, the claim is considered 
as a reported claim for annual statement 
purposes. 

(3) "Claims unaccrued" means that portion of 
claims incurred on or before the valuation 
dale that result in liability of the MEW.V for 
the payment of benefits for medical services 
expected to be rendered after the valuation 
date, and for benefits expected to be pa\able 
for days of hospitalization and davs of disa- 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



25 



PROPOSED RULES 



bilitv occurring after the \"aluation date. 
This liability is sometimes referred to as a 



liabilitN for unaccrued benefits 



(4) "Claims unreported" means when a 
Ml \\'A has not been mformed. on or before 
the \aluation date, concemmij a claim that 
has been incurred on or pnor to the vaJu- 
ation date, the claim is considered as an 
unreported claim for annual statement pur- 
poses. 

( 5 ) "Claim reserves" mean reserves or liabilities 
held for claims incurred on or before the 
\aluation date, but unpaid as of the valu- 
ation date. Claim reser\es include both re- 
ported and unreported claims. Claim 
reserves are established for both accrued and 
unaccrued benefits. 

(6) "Incuaed date" means the date that a claim 
is determined t£ be a liability of the .MHWA. 
For example, the charges for inpatient hos- 
pital and ph\sician visits in hospitals would 
be assioicd an incurred date equal to the 
date of admission; outpatient hospital 
charges would be assigned an incurred date 
equal to the date of service: surgical expenses 
would be assigned an incurred date equal to 
the date of the surger\'. 

(7) "Ineamed premium reserves" mean re- 
serves established for premiums recei\ ed that 
produce insuring penods extending bexond 
the \aluation date. 



Slatulon 
58-49-60. 



iuthoriiy G.S. 58-2-40: 58-49-40; 



.1 1 15 MINIMUM RESERVE ST.\NDARDS 

(a) Ihe following two categories of reserves 
shall be established bv e\ erv MIW .A: 

( 1) Claim reserves: and 

(2) Premium reserves. 

(bi 1 he adequacN of a MI WA's health insur- 



ance reserves shall be determined on the basis of 
the two categories combined: however, the 
standards in this Rule and in 1 1 NCAC 12.111b 



fa) Minimum claim reserves are required for 
all incurred but unpaid claims, which include 
claims accrued and claims unaccrued. 

(b) lor the current year exposures, where his- 
toncal claim inlormation is either not a\ai]able 
or not credible, the minimum claim resene shaU 
be calculated in the following manner: 

( 1) Calculate the toted earned premium as of 
the end of a \aluation penod for each 
policy form, group of pohcv forms, master 
contract, or group of master contracts. 

(2) .Multiply the total earned premium bv the 
expected incurred loss ratio for each pol- 
icy form, group of polic\ forms, master 
contract, or group of master contracts. 
I he sum of the results of these multipli- 
cations is referred to as the "total incurred 



(3) Subtract from the total incurred claims the 
total amount of claims paid as of the end 
of a valuation penod. The result of this 
subtraction is the total "minimum" 
amount that shall be added to the claim 
reserves estabUshed at the beginning of the 



\aluation penod. 
(4) The calculations in Subparagraphs (b)( 1 ) 

and (2) of this Rule may gi\e recognition 

to duration. 
(c) For later years of exposures, where histor- 
ical claim infonnation is a\ailable and credible. 
the minimum reserve shall be calculated using 
any generally accepted or reasonable actuanal 
claim ninotr method. Claim mnoff schedules 
shall be developed by using appropnate mcurred 
dates and paid dates for claim >. .\dequac\' of the 
clarm reserves shall be determmed in the aggre- 



gate. 



(d) .Appropriate claim expense reser. es are re- 
c^uired with respect Xo_ the estimated expense of 
settlement of aU incurred but unpaid claims. 
Claim settlement expenses shall include both al- 
located and unallocated expenses. 

(e) All claim reserves for pnor valuation peri- 
ods shall be tested lor adequacN' and reasonable- 
ness along the hues of claim mnoff schedules in 



and . 1 1 1 ~ emphasi/e the importance ot^ deter- accordance with the statutor\ linancial statement 



mining appropnate resenes for each categorv 
separately. 

(CI When a MF^^"A detemiines that adequacy 
of Its health insurance reserves requires reserves 
in excess of these minimum standards, such in- 
creased resenes shall be held and shall be con- 
sidered the minimum reserves for that .MFW'A. 



including consideration of an\ residual unpaid 
liability. 



jj} Fach MFW'A shall de\clop a follow-up 
stud\' comparmg its previous resene estimates 
against subsequent claims actualK paid together 
with the remaining estimated liabilit\" as ot the 
\aluation date. The results ot this stud\- shall be 
filed with the Actuanal Senice Division of the 



Statulon' Aiithoriiv 
58-49-60. 



G.S. 5S-2-40: 58-49-40: Department bv .March _1_ of each calenda 



.1116 CLAIM RESERVES 



Statutory Aut/iorilv 
58-49-60. 



G.S. 58-2-40: 58-49-40; 



26 



■1 AORTH CAROLLWA REGISTER April I, 1992 



PROPOSED RULES 



.1117 PREMIUM RESERVES 

(a) Unearned premium reserves are required for 
all MEW As with respect to the period of cover- 
age for which premiums, other than premiums 
paid m advance, have been paid bevond the date 
of valuation. 

(b) If premiums due and unpaid are carried as 
an asset, such premiums must be treated as pre- 
miums in force, subject to unearned premium 
reserve determination. The value of the unpaid 
commissions and the cost of collection associated 
with due and unpaid premiums must be carried 
as an offsetting liability. 

(c) The minimum unearned premium reserve 
with respect to anv contract is the 212 rata gross 
unearned modal premium that applies to the 
premium period bevond the valuation date. 

(d) MEWAs may employ suitable approxi- 
mations or estimates, includmg groupings, aver- 
ages, and aggregate estimation, in computing 
premium reserves. Such approximations or esti- 
mates shall be tested penodicallv to determine 
their continuing adequacy and reliability. 



Statutory Authority G.S. 58- 2-40; 
58-49-60. 



.1118 



58-49-40; 



M.VXIMUM NET RETENTION 
STANDARD 

(a) The specific maximum net retention limit 
for any .MEW A, associated with the penod of 
time that the excess insurance coverage is in 
force, shall be calculated in the foUowing manner: 



Determine the total expected dollar value 
of claims. 

Determine the total surplus at the begin- 
ning of the period of time that the excess 
insurance coverage is scheduled to be in 
force. 



ill 

iH 
iH 

(4) 

15) 
(61 

(b) 

shall not exceed the lesser ot: 

( 1) The amount in Subparagraph (a)(6) of this 

Rule; 

(2) Twentv-five thousand dollars (S25.0OO); 
or 



Multiply Subparagraph (a)(1) of this Rule 
bv li\'e percent and add that product to 
Subparagraph (a)(2) of this Rule. 

Multiply the result of the calculation in 
Subparagraph (a)(3) of this Rule times jt^ 
self. 

Multiply Subparagraph (a)(1) of this Rule 
bv the number 3.4. 

Divide the product of the calculation in 
Subparagraph (a)(4) of this Rule bv the 
product of the calculation in Subpara- 
graph (a)(5) of this Rule. 
The speciiic maximum net retention limit 



(3) The specific maximum net retention limit 
determined by or for the MEWA in ac- 
cordance with sound actuarial principles. 

(c) The aggregate maximum net retention shall 
not exceed the lesser of: 

(1) One hundred twenty-five percent of Sub- 
paragraph (a)(1) of this Rule; or 

(2) The aggregate maximum net retention 
Unlit determined by or for the M E W A in 
accordance with sound actuarial princi- 
ples. 

(d) The Commissioner may approve a specific 
maximum net retention limit or an aggregate 
maximum net retention limit or both in excess 
of those calculated pursuant to this Rule, upon 
application to the Commissioner and the Com- 
missioner's determination that the increase would 
not inhibit the ability of the MEWA to perform 
its present and future contractual obligations to 
policyholders and participants under the 
MEWA s plan. 

Staiutoiy Authority G.S. 58-2-40; 58-49-40(c). 

.1119 DESCRIPTION OF FORMS 

(a) Eorm MEWA-1 includes the MEWAs 
name, address, board of trustees, articles of in- 
corporation, copy of the benefits' contract, au- 
dited financial statement, actuarial statement, and 
other pertinent information. 

(b) Form MEWA-2 mcludes a balance sheet, 
statement of income (expenses and surplus), 
statement of changes in fmancial position, 
schedule of investments, and other pertinent in- 
formation. 

(c) form MEWA-3 includes the trustee's 
complete name, office held, date and place of 
birth, current address (business and residential), 
education, employment histor\', criminal investi- 
gations or charges, and other pertinent informa- 
tion. 

(d) Eorm .MEWA-4 includes a signed state- 
ment bv officials of the .MEWA appointing the 
Commissioner of Insurance as the MEWAs true 
and lawful attorney upon whom legal process 
shall be served. 

Statutory Authority G.S. 58-2-40; 58-16-30; 
58-49-20; 58-49-30; 58-49-40; 58-49-50; 
58-49-60. 

TITLE 12 - DEPARTMENT OF JUSTICE 



1\ otice is hereby given in accordance with G.S. 
I50B-2I .2 that the Sorth Carolina Alarm Systems 
Licensing Board intends to amend nde(s) cited 
as 12 NCAC II .0202. 



7:1 NORTH CAROLED A REGISTER April 1, 1992 



27 



PROPOSED RULES 



1 he proposed effective dale of this action is Au- 
gust 3, 1992. 

1 he public hearing will be conducted at 1 1 :00 
a.m. an May I, 1992 at the State Bureau of In- 
vestigation. Conference Room, 3320 Old Garner 
Road, Raleigh. \C 2^626-0500. 

IXeason for Proposed .Action: To impose a six- 
month waiting period before re-examination after 
having two unsuccessful attempts at the examina- 
tion. 



Co 



■ omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. In addition, the record of hearing will 
be open for receipt of written comments until the 
hearing. Written comments must be delivered to 
or mailed to: Mr. James F. Kirk. SC Alarm 
Systems Licensing Board. 3320 Old Garner Road. 
P.O. Box 29500. Raleigh. .\C 27626-0500. 

CHAPTKR 1 1 - N.C. ALARM SYSTEMS 
LICENSING BOARD 

SECTION .0200 - PRO\ ISIONS FOR 
LICENSEES 

.0202 EXPERIENCE REQLIREMENTS FOR 
LICENSE 

(a) Applicants for an alarm system license must 
meet the following minunum requirements which 
are additional to those specified m G.S. Chapter 
74D; 

(1) Establish to the Board's satisfaction two 
year's experience witliin the past five years 
in an alarm systems business as defined in 
G.S. 74D-2(a); alarm systems installation 
and service or; 

(2) Successfully pass an oral or written exam- 
ination deemed by the Board to measure 
an individual's knowledge and compe- 
tence in the alarm systems business: and 

(3 1 Successfully complete cither the SP-LV, 
limited, intermediate or unlimited exam- 
ination as administered by the North 
Carolina Board of Examiners of Electrical 



Contractors and maintain said hcense at 
all times while hcensed by the .'Marm Sys- 
tems Licensing Board. 

(b) j\nv applicant who takes the examination 
administered bv the Bt^ard under 12 NC.AC 1 1 
.()2()2(a)(2) and who does not successfully com- 
plete said examination after two attempts, must 
wait six months before beine allowed to take the 
examination again. 

(c) (4^ .Applicants engaged exclusively in moni- 
tonng or responding to alarms may be issued a 
limited license which authorizes the performance 
of monitoring and responding functions only. 
Applicants for such a limited license shall not be 
required to meet the experience requirements of 
12 NCAC Chapter 11 .0202(a). 

Statutory^ .Authority G.S. 74D-5. 

TITLE 15.\ - DKPARTMENT OF 

EM IRONMENT, HEALTH, AND 

N.ATLRAL RESOL RCES 



No 



otice is hereby given in accordance with G.S. 
l50B-2l.2ifl that the N.C. Wildlife Resources 
Commission intends to amend ndes cited as 15.4 
NCAC lOB .0203. .0209: IOC .0205. .0305: lOD 
.0003 - .0004 with changes from the proposed text 
noticed in the Register. \ 'olume 6, Issue IS, pages 
1323 - 1366. 



Th 



he proposed effective date of this action is July 
I, 1992. 

C omment Procedures: Interested persons may 
present their views in writing from .April I, 1992 
to May 1 , 1992. Such written comments must be 
delh-ered or mailed to the X.C Wildlife Resources 
Commission. 512 Sorth Sahsburv Street. Raleigh, 
SC 27604- II SS. 

LLdhor's \nte: .An agency may not adopt a rule 
that dijfcrs substantially from the text of a pro- 
posed rule published in the Register unless the 
agency publishes the text of the proposed dijferent 
rule and accepts comments on the new text for at 
least 30 days after the publication of the new text. 



CHAPTER 10 - WILDLIFE RESOURCES AND W .VTER SAFETY 

SLBCIIAPTER lOB - IILNTING AND IR.VPPING 

SECTION .0200 - lU NIING 

.0203 DEER (WHITE-TAILED) 

(a) Closed Season. .Ml counties and parts of counties not listed under the open seasons in Paragraph 
(b) in this Rule are closed to deer hunting. 



2S 



".-/ SORTH CAROLISA REGISTER .April I, 1992 



PROPOSED RULES 



(b) Open Seasons (All Lawful Weapons) 

(1) \Iale Deer With Visible Antlers. Male deer with antlers or spikes protruding through the skin, 
as distinguished from knobs or buttons covered by skin or velvet, may be taken during the fol- 
lowing seasons: 
(A) Monday on or nearest October 15 to Januar>' 1 in the following counties and parts of coun- 
ties: 



Beaufort 


Duplin 


Lenoir 


Pitt 


Bertie 


Edgecombe 


Martin 


Richmond** 


Bladen 


Franklin 


Nash 


Robeson 


Brunswick 


Gates 


New Hanover 


Sampson 


Camden 


Greene 


Northampton 


Scotland** 


Carteret 


Halifax 


Onslow 


TyrreU 


Chowan 


Hertford 


Pamlico 


Vance 


Columbus* 


Hoke 


Pasquotank 


Warren 


Craven 


Hyde 


Pender 


Washington 


Currituck 


Jones 


Perquimans 


Wayne 


Dare 






Wilson 


norland: That part 


south of \C 24 


or east of 1-95. 





Harnett: That part west of NC 87. 
Johnston: All of the county except that part south of IS 70 and west of 1-95. 
Moore**: /VU of the county except that part north of NC 211 and west of L'S 1. 
Sampson: Atir ef tJw county oxcopt that- paft- wt'st ei jv€ 3-44 aft4 north ef t-S' 4-3t 



Wake: That part north of 1-40. 



*Unlawful to hunt or kill deer in Lake Waccamaw or within 50 yards of its shoreUne. 
**See 15A NCAC lOD .0003 (4) (e) (2) for seasons on Sandhills Game Land. 
(B) Monday of Thanksgiving week to oocond third Saturday after Thanksgiving Day in the fol- 
lowing counties and parts of counties: 



Alexander 
Alleghany 
Ashe 
Catawba 



Davie 
Fors>lh 
Gaston 
Davi e 



IredeU 
Lincoln 
Stokes 
Surry 



Watauga 

Wilkes 

Yadkin 



Mocldonburg: That part north si 4^ ?4 oxcopt Cowan o Ford Watorfowl Rofugo. 
(C) Monday of Thanksgiving week to third Saturday after Thanksgiving Day Ln the followLng 
counties and parts of counties: 



Avery 


Clay 


Jackson 


Polk 


Buncombe 


Cleveland 


Macon 


Rutherford 


Burke 


Graham 


Madison 


Swain 


CaldweU 


Haywood 


.McDowell 


Transylvania 


Cherokee 


Henderson 


.Mitchell 


Yancey 



(D) Monday before Thanksgiving week to January 1 in the following counties and parts of 
counties: 



Alamance 

Anson 

Cabarrus 

Caswell 

Chatham 

Davidson 

Durham 



Granville 

Guilford 

Lee 

Mecklenburg 

-Montgomery 

Orange 



Person 

Randolph 

Rockingham 

Rowan 

Stanly 

Union 



Cumberland: That part north of NC 24 and west of 1-95. 



7:1 NORTH CAROLINA REGISTER April I, 1992 



29 



PROPOSED RULES 



Hamett: That part east of NC 87. 
Johnston: That part south of US 70 and west of 1-95. 
Moore: That part north of NC 21 1 and west of US 1. 
Samp ' jon: Ihat part \\\fA »f -XG 342 aft4 north »f t-S 44t 
Wake: That part south of 1-40. 
(2) Deer of Either Sex. Deer of either se.x may be taken during the open seasons and in the counties 
and portions of counties listed in this Subparagraph: 
(.\j The open either-se.x deer hunting dates established by the U.S. Tish and Wildlife Service 
during the period from the first Saturday in October to Januar," 1 in those parts of Hyde, Tyrrell 
and Washington Counties known as the Focosin Lakes National Wildlife Refuge, in those parts 
of Camden. Gates and Pasquotank Counties known as the Dismal Swamp National Wildlife 
Refuge, and in that part of Cumtuck County known as the Mackay Island National Wildlife 
Refuge and those parts of .Vnson and Richmond Counties known as Pee Dee National \\'ildlife 
Refuge. 

(B) The open either-se.x deer hunting dates established by the appropriate militan' commands 
during the period from Monday on or nearest October 15 to January 1 in that part of Brunswick 
County known as the Sunny Point Militar,' Ocean Terminal, in that part of Craven County 
known and marked as Cherrs" Point .M;irine Base, m that part of Onslow County known and 
marked as the Camp Lejeune Marine Base, on Fort Bragg Military Reservation, and on Camp 
-Mackall .Military Reservation. 

(C) Second Saturday in October for youth either sex deer hunting by permit only on a designated 
portion of Belews Creek Steam Station in Stokes County. 

(D) The second Saturday' in December in all of Buncombe. Catawba. Clovoland. Ha\vvood, 
Henderson. Lincoln. .Madison, Mitchell. Folk. Rutherford »ft4 Lransylvania and ^'ancev 
Counties and the followinii parts of counties: 

A\en': That part south cM the Blue RiJge Parkway. 
fp4 ^^' e dn^. ■' ^day i-4- (4*e ' ■ veek folio wing i'hunk ;i giving ift att &f Catawba. Ck" . L'land. Foro; i 1:h, 
.MitchjII. rt«4 RuthL'iford CountiL", . : ri«4 » t4*t* following parta e4^ Counli e- : . : 
iMleghany: AH- evf tlw county except game land - : . . 
i\L . h e : A44 t4' t+w county except game land '. . 

j\' i or>': 1 hilt fN+rt laiulh t-4- \^ Blue Ridge Parkw ay, except game lunJL . . 
Burke: Att (-t4 At» Ciiunt; . except game kindL . . 
Cald' . ' . ell: AW i*t- t4*e count' , except jame lando. 
Cumberland: ?4«* jhh* 5*v«tb ef S* i^^iW, v^^ t4 S* WOir Vre^4■ »^ 

Cape Fear Paver. 
Dasid '. on: 1 hat part north &f I j^ 5. except game landf . . 
McDo' i ' . ell: AH- t+f tH^ county except game landr . . 
.Mecklenburg: I hat part v . e . jt trf I 77, . jouth erf XG ZX^ ea^t- e4" th« Catawba River, ctft4 north 

e4" ^4? \U aH4 lift 200 1 except fof tlw Cowan'; . Ford \\'aterfo' . vl P». e fug e . 
Rowan: I hat paft- ' ■ v e -t t4 -l-S- -^Jr except game kindr . . 
^^"a ■' llu•lgton: That pr+rt e^+-+ ef N4^ 7^4 i*ft4 .. outh t4 -(-^ M-r 
fF I (4h Wedno ' jday a«4 1 hur '. day Fnda\ and Saturday of the week following Thanksgiving in all 
of Dare County Iredell emtl- Suny Countio '. and m the following parts of counties: 
Alexander: AU- ef y** county except game lando. 
Cabarrus: That part west of US 52 and south of a line formed by NC 49 from the Mecklenburg 

Count\- line to .Mount Pleasant and east of SR 1006 from Mount Pleasant to the Rowan 

Count\ line. 
Davie: AH- e4 \kt^ count;, except game landv. 
Davidson: That part north of I-S5. except game lands, 
.Mecklenbur^.;: '1 hat part north of US 74. 
Rowan: '["hat p.iil N\cst o[ US 51 except uame lands. 
Moor e : Ihiit pr+rt- nt'ith i-4 X4^ ik+r exc e pt gam e land '. . 
Scotland: 1 hat part noilh o\ US "4. except game lands. 
Lnion: That part south of US 2i iH^ ^ 11. 
Slokf . : AH- t4 t4+e county except game kind; . . 
I ; . nell: 4-kri- prtFl- -outh i-4 -1-4^ ^ 
NN'ilkeo: AH trf th^ county except game landc. 



.^0 "■/ yORTH CAROLIAA REGISTER April I, 1992 



PROPOSED RULES 



(F) {G^ Wednesday to Saturday of the week following Thanksgiving in all of jMamanoo, Camden, 
CaowoU, Chatham, Durham, Gmnvillo, Cumberland, Greene, fee»7 Orongo, Pasquotank, Poroon, 
Rockingham, Wake, and Wilson Counties and in the following parts of counties: 
Columbuf i : That part west ef a few formed by 4yS ^ SR- 1005, ftH4 Sj^ 1 135. 
Cumberland: That part ea^ ef j-^ aft4 south ef t>^ 34t 

Currituck: That part north and west of the Intracoastal Waterway. 
Franldin: That part wost &f M^ h 

Guilford: That part north ef a boundary fonnod by 1-40 aft4 I 85. 
Johnston: That part north of US 70 aft4 or west of 1-95. 
Moore: That part south »f >^ 3447 All of the county except on game lands. 
Nash: That part south of US 64. 

Perquimans: That part south of US 17 and east of Perquimans River. 
Randolph: That part south ef -yS- 64 aft4 woot ef -^S- 33ftr axcopt e» gamo lands. 
Richmond: That part east of a line formed by US 220 from the Montgomery County hne to 
Rockingham and US 1 from Rockingham to the South Carolina line, except on game lands. 
Rob e son: That part ea^ &f I 95. 
Stanly: That part west of US 52. 
Tvrrell: That part south of US 64. 

Washington: That part east of NC 32 and south of US 64. 
Wayne: That part north of US 70. 

(G) fHi Wednesday of the week following Thanksgiving to Saturday of next succeeding week in 
all of Alamance, Caswell, Chatham, Frankhn, Guilford, Lee, Orange, Person, Randolph, 
Rockingham, and Hyde, Vance afi4 Warron Counties and in the following parts of counties: 
/Vnson: /VU of the county except game lands. 

Cabarrus: That part east of US 52. 

Carteret: All of the county except game lands. 

Chowan: That part north of US 17. 

Columbus: That part west of US 74, SR 1005, and SR 1 125. 

Currituck: That part south and east of the Intracoastal Waterway, except the Outer Banks. 

Davidson: That part south of 1-85, except on game lands. 

Durham: AU of the county except Butner-Falls of Neuse Game Land. 

Edgecombe: That part south of US 64. 

Franklin: That- part east- &f tj^ +r 

GranviUe: AU of the county e.\cept Butner-FaUs of Neuse Game land. 

Johnston: That part south of US 70 and east of 1-95. 

Lenoir: Ihat part west of NC 1 1. 

Montgomery: All of the county except on game lands. 

Nash: That part north of US 64. 

Richmond: That part west of a line formed by US 220 from the Montgomery County line to 
Rockingham and US I from Rockingham to the South Carolina line. 

Robeson: That part east of 1-95. 

Rowan: That part east of US 52, except on game lands. 

Stanly: That part east of US 52, except game lands. 

Washington: That part west of NC 32 and south of US 64. 

Wayne: That part south of US 70. 
(H) (4+ Monday of Thanksgiving week to the third Saturday after Thanksgiving Day in that part 

of Buncombe County east of NC 191, south of the French Broad and Swannanoa Rivers, west 

of US 25, and north of SR 3503, NC 280 and SR 3501. 
(I) (4^ Wednesday of the week following Thanksgiving to January 1 in all of Brunswick, Llertford, 

Gates, Northampton, a«4 Pitt, and Warren Counties, and in the following parts of counties: 

Beaufort: All of the county except game lands. 

Bertie: All of the county except Roanoke River Wetlands and Roanoke River National Wildlife 
Refuge. 

Bladen: All of the county except game lands. 

Chowan: That part south of US 17. 

Columbus: That part east of a hne formed by US 74, SR 1005, and SR 1 125. 

Craven: AU of the county except game lands. 

Duplin: AU of the county except game lands. 



7:1 NORTH CAROLINA REGISTER April I, 1992 31 



PROPOSED RULES 



Edgecombe: That part north of US 64. 

Halifax: All of the county except Roanoke Ri\-er Wetlands. 

Hvde: .All of the county except game lands. 

Jones: AW of the county except game lands. 

Lenoir: That part east of NC 11. 

Martin: All of the county except Roanoke River Wetlands. 

New Hanover: That part north of US 74. 

Onslow: .-Vll of the county except game lands. 

Pamlico: .All of the county except game lands. 

Pender: All of the county except game lands. 

Perquimans: All of the county except that part that lies both south of US 17 and east of the 
Perquimans Ri\er. 

Sampson: That part south of NC 24. 
(J) The second Wednesday after Thanksgiving to the third Saturday after Thanksgiving in all of 

.Mexander. Davie. Iredell. Stokes. Surrw and Wilkes Counties. 
(K I The thud tndav after Thanksgiving to the third Saturday after Thanksgiving in all of 

Allcglianv, Ashe. Burke. Caldwell. Cle\-eland. ForsMh. .McDowell. Rutherford. Watauga, and 

\"adkin Counties. 
(L) In those counties or parts of counties listed in Paragraph (b)(2)(I), except on game lands, one 

antlerless deer mav be taken during that part of the regular gun season in which no other either 

sex season is open and must be tagged with the antlerless only deer tag. 
(3) Game Lands Lither-Sex Hunts. On the hunt dates indicated, deer of either sex may be taken 

by permittees engaged in managed hunts conducted on game lands in accordance with 15A 

NCAC lOD .0003 (4f (e] (4) and (5). 

(c) Open Seasons (Bow and rVrrow) 

(1 ) Authorization. Subject to the restrictions set out in Subparagraph (2) of this Paragraph and the 
bag hmits set out in Paragraph (e) of this Rule, deer of either sex may be taken with bow and 
arrow during the foUowing seasons: 

(A) Monday on or nearest September 10 to the fourth Saturday thereafter in the counties and 
parts of counties ha\ing the open season for male deer specified by Part (A) of Subparagraph 
(b)(1) of this Rule, except on the Sandhills Game Land. 

(B) Monday on or nearest September 10 to the second Saturday before Thanksgiving in the 
counties and parts of counties having the open seasons for male deer specified by Part (B) of 
Subparagraph (b)(1) of this Rule. 

(C) Monday on or nearest September 10 to the fourth Saturday thereafter, and Monday on or 
nearest October 15 to the Saturday before Thanksgi\ing in the counties and parts of counties 
having the open seasons for male deer specified by Part (C) of Subparagraph (b)( 1) of this Rule. 

(D) Monday on or nearest September 10 to the third Saturday before Thanksgiving in the coun- 
ties and parts of counties having the open season for male deer specified by Part (D) of Sub- 
paragraph (b)(1) of this Rule, and on Sandhills Game Land. 

(2) Restrictions 

(A) Dogs may not be used for hunting deer during the bow and arrow season. 

(B) It is unlawful to cany any type of firearm while huntmg w ith a bow during the bow and arrow 
deer hunting season. 

(C) Only bows and arrows of the t\'pes authorized in 15.\ NCAC lOB .0116 for taking deer may 
be used during the bow and arrow deer hunting season. 

(d) Open Seasons (Muzzle-Loadmg Rilles and Shotguns) 

( I ) Authorization. Subject to the restrictions set out in Subparagraph (2) of this Paragraph, deer 
may be taken only with muzzle-loading firearms during the following seasons: 

(A) Monday on or nearest October 8 to the following Saturday in the counties and parts of 
counties having the open seasons for male deer specified by Items (A) and (C) of Subparagraph 
(b)( 1) of tliis Rule, except on Sandhills Game Land. 

(B) Monday to Saturday of the week preceding Thank sgi\'ing week in the counties and parts of 
counties having the open seasons for male deer specified by Item (B) of Subparagraph (b)(1) 
of this Rule. 

(C) Monday to Saturday of the second week before Thanksgiving week in the counties and parts 
of counties ha\ing the open season for male deer specitled by Part (D) of Subparagraph (b)(1) 
of this Rule, and on Sandhills Game I and. 



i2 7:1 NORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



(2) Restrictions 

(A) Only malo de^s* with viaibl e antlorn fnay b*» takon during t4*e muv^i'lL' loading rir e arms Doaoon 
e xc e pt that: 

(4) Q» t4*« last- day »f tfee ootabhohod mujti'lo loading firearms fioar . on a maximum »f twe- 
antleri e so deef may t>e C i ubotitutcd fof as- L'qual number »f antlcrod deer whon tolcon » that- 
part e4^ aw county lir . tod i» thu* Subparagraph Aat- has aft oritablii ' hod g**ft either ti s x deef 
season. 



iVl e xand e r 

jMleghany 

A' . 'ory 
Burke 
Caldv , ell 

/ « < \ \ r\ (Jt^^^^ ^*-^^^ 1 1 r « t t-i ^1 r\ , 

V U / 111 1 1 H^ L-tJ Cnr^TT^ TTTTTT HI 1 ' 



McDo>voll 

Mitchell 

Rutherford 

lSIoUos 

Suny 

W'ilkeo 



Catawba 
Cl e veland 
Davie 
Forsvlh 

Mecklenburg 

i^sUl 1 l-llll^l ^n^' JV U1>^ I rTCTTTTmT II I C^TTTTTTTCTT (_TI LTTXl rCT ITI CTT^TTTTT^CT 

listed » Paragraph (b)( l)(A) ef fD) ef tfeis Rule a maximum &i t^A^ antlerleos dijet may be 
substituted fof aft equal number ef antlered deer aftd efte additional antlorless door is permitted 
without substitution. 

(A) Deer of either sex may be taken during mu/zle-loadin^ firearms season in those counties or 
parts of counties hstcd in Parts (A) and (D) of Subparagraph (b)(1) of this Rule and deer of ei- 
ther sex may be taken on the last day of muzzlc-loadmg firearms season in those counties or 
parts of counties listed in Part (B) and (C) of Subparagraph (b)(1) of this Rule. 

(B) Dogs may not be used for hunting deer during the muzzle-loading firearms seasons. 

(C) Pistols may not be carried while hunting deer during the muzzle-loading firearms seasons, 
(e) Bag Limits: Daily, two: possession, five; one of which must be antlcrless; Season, five; one of 

Anterless deer include males 



which must be antlerless. 



with knobs or buttons covered bv skin or velvet 



as distinguished from spikes protruding through the skin. 

(4-^ Male Deor With Vi '. ible i\ntlers. Daily, tvvo; posses ' . i ion, four: season, four. 

f3f Antl e rless Deer. Wliere antlerless deer may b*» la^sfuUy taken, a maximum ef t-wo antlerleos door 

f44 »*■ thts Paragraph. iVntlerless deef include males w+tfe knobs ef buttons covered by sfe» »f 
velvet as distinguished from spikes protruding througli (4*e skin. 
(4) tft those areas with aw e^ . tablished gt+ft either sex d#ef sea ^. on i«- counties aftd parts »f counties 
listed m Paragraph (b)( 1 )(iV) »f (4^ t*f thts Rule. »«# additional antlerless deef is permitted 
V i ithout substitution when taken during a g«ft either sex. bow awd arrow evF mu/'/le loading 
fireanns season. h\ thos e counties e* parts t4 counties listed ift Paragraph (b)(2)(k), this ene 
additional antlerleos d^«*f FHay be tak e n during afty part »f Ae g«» deef season oxcopt »» game 
lands where this deef cannot be taken during »f¥r part »f a «*«• s e ason net- open te either s^^t 
deep hunting. When taken during trbe regular g:«ft season this additional antlerleoo deep must be 
tagg e d with tite antlerless only deef tagr 
(f) Kill Reports. Ihe carcass of each deer shaU be tagged and the kill reported as provided by 15A 
NCAC lOB .0113. 



Statutory Authority G.S. 113-134; 113-270.3; 1 13-276.1; 1 13-291. 1; 1 13-291.2. 



.0209 WILD TURKEY (BE.VRDED TLRKEVS 
ONLY) 

(a) Open Season: Second Saturday in April to 
Saturday of the fourth week thereafter on 
bearded turkeys in the following counties: 
Alleghany, Ashe, Buncombe, Caswell, Cherokee, 
Clay, Durham, Graham, Granville, Haywood, 
Henderson, Hyde. .Macon, Me Do ' ■ veil, Mitchell. 
Orange, Person, PoLk, Rockingham, ** Scotland, 
Swain, Trans\hania, and in the following 
portions of counties: 

Alamance: .'\J1 of the county except that part 
south of I-S5 and west of NC 87. 



Anson: That part east of US 52 and north of 
US 74. 

** Bertie: That part west of a line formed by 
NC 45 from the Hertford County line to 
Colerain, NC 42 to PoweUsville, US 13 to 
US 17 South, US 17 South to SR 1500, 
SR 1500 to NC 308, and NC 308 to the 
Washington County hne. 

Bladen: That part south of NC 701 and east 
of a line formed by NC 210, NC 53, SR 
1730. 

Brunswick: That part north of US 74-76. 



7 NORTH CAROLINA REGISTER April I, 1992 



33 



PROPOSED RULES 



Buncombe: All of the county except that part 
north and east of a boundan,' formed by 
IS 1^) 2J. 1-240. and 1-40. 

Burke: That part north of 1-40. 

Culdv , t'll: 4+Hrf- p«rt Vrt»t- »f t-S *^ 

Carteret: That part west of US 70 and north 
of NC 24. 

Chatham: That part north of US 64. 

Chowan: That part south of US 17. 

Columbus: That part south of US 74 and west 
of XC 410 and that part north of NC 87. 

Craven: That part west of US 70, and south 
of SR 1101 and that part north of the 
Neuse River, south of a line formed by 
US 17 and US 17 Business, and east of a 
line formed by SR 1440 and SR 1441. 

*J_ Haiifa.x: That part north of NC 903 and 
east of 1-95. 

Hoke: That part south and west of NC 211. 

Jackson: That part south of US 74 except the 
portion bounded on the north by NC 281, 
on the west bv NC 107, and on the south 
by US 64. 

Johnston: That part south of US 70 and 1-95 
and east of US 701. 

Madison: /Ml of the county except that part 
east of SR 1434 and NC 212, north of SR 
1318, US 23andSR 1503. 

** Martin: That part north of a boundary 
formed by US 64 from the Washington 
County line to Williamston, north of NC 
125 from Wilhamston to the junction with 
NC 142, and north of NC 142 to the 
Edgecombe County line. 

McDowell: That part north of US 70 and that 
part south of 1-40. 

Mitchell: That part north and west of a 
boundary formed bv NC Wh NC 226, 
and NC 261. 

Montgomery: That paf4 r . outh ef NG 21 27. 
All of the county except that part North 
of NC 24 27 and east of NC 134. 

** Moore: That part south of NC 211. 

Northampton: J hat part south of a boundary 
formed by US 158 from the Halifax 
County line to Jackson, NC 305 from 
Jackson to Rich Square, US 258 from 
Rich Square to NC 308, and NC 308 to 
the Bertie County line. 

Onslow: All of the county except that part 
east of a line formed bv US 17, SR 1434 
and SR 1442. 

Pender: That part west of US 421. 

Perquimans: That part south of I'S 17. 

** Richmond: That part north of US 74. 

Robeson: That part east of 1-95 and south of 
I'S 74. 

Ruthcrtbrd: That part west of US 221. 



Surry: That part west of 1-77. 

Swain: Att &f tfe* county except tfert- paft 

Tranc . ylvania: AH- ef tfes county o.scopt Aat- 

Watauga: That part north and east of US 321. 

Wilkes: That part north of NC 268. 

Yancey: That part north of US 19E and east 
and north of US 19W. 
**The Sandhills Game Land in Richmond, 
Scotland, and Moore Counties and the Roanoke 
River Wetlands in Bertie, Halifax, and .Martin 
Counties are closed to turkey hunting except by 
holders of special permits authorizing turkey 
hunting. Such permits are issued by authorized 
representatives of the WUdhfe Resources Com- 
mission. 

(b) Bag Limits; Daily, one; possession, two; 
season, two. 

(c) Dogs Prohibited. It is unlawful to use dogs 
for hunting turkeys. 

(d) Kill Reports. The carcass of each wild 
turkey shall be tasaed and the kill reported as 
provided by 15A NCAC lOB .0113. 



Statutory Authority G.S. 
113-276.1; 1 13-291'. 2. 



113-134: 1 13-270.3; 



SLBCH.APTER IOC - INL.VND FISHING 
REGLL.\TIO\S 

.0205 PUBLIC MOUNTAIN TROUT WATERS 

(a) Designation of Public Mountain Trout 
Waters. On game lands located in western North 
Carolina certain waters are clas ' jifi e d ctft4 desig- 
nated as pubUc mountain trout waters and clas- 
sified as wild trout waters or hatchery supported 
waters. For specific classifications see Subpara- 
graphs (1) and (2j of Paragraph (a) of this Rule. 
Other streams, portions of streams, and bodies 
of water which aie not located on game lands are 
designated within this Rule as public mountain 
trout waters and are classified as hatchery sup- 
ported trout waters or wild trout waters. These 
waters are posted and lists thereof are filed with 
the clerks of superior court of the counties in 
which they are located: 

(1) Hatchery Supported Irout Waters. Lhc 
hatcher>' supported public mountain trout 
waters are designated in this Subparagraph 
under the counties where located. WTiere 
specific watercourses are listed indentation 
indicates the watercourse named is 
tributary to the next preceding 
watercourse named and not so indented. 
The designation applies to the entire 
watercourse or impoundment named, in- 
cluding tributaries when on game lands, 



54 



7:1 i\ORTH CAROLINA REGISTER April 1, 1992 



PROPOSED RULES 



except as otherwise indicated in parenthe- 
ses following the name. Other clarifying 
information may also be included paren- 
thetically: 

(A) /Vlleghany County: 
New River (not trout water) 

Little River (Whitehead to McCann 

Dam) 

Crab Creek 

Brush Creek (except where posted 
against trespass) 

Little Pine Creek 

Big Pine Creek 

Little Glade Creek 

Laurel Branch 

Big Glade Creek 

Bledsoe Creek 

Pine Swamp Creek 

South Fork Little River (except where 
posted against trespass) 
South Fork New River (not trout water) 

Prather Creek 

CranberrV' Creek 

Piney Fork 

Meadow Fork 
Yadkin River (not trout water) 
Roaring River (not trout water) 
East Prong Roaring River (that portion 

on Stone Mountain State Park) De- 
layed Harvest Waters regulations apply. 

See Subparagraph (5) of Paragraph (a) 

of this Rule. 

Stone Mountain Creek 

(B) Ashe County: 

New River (not trout waters) 

North Fork New River (Watauga Co. 

line to Sharp Dam) 
Helton Creek (Virginia State line to 

New River) 
Big Horse Creek (SR 1361 bridge to 

Tuckerdale) 
Buffalo Creek (headwaters to junction 

of NC 194-88 and SR 1131) 
Big Laurel Creek 
Three Top Creek (portion not on game 

lands) 
Hoskins Fork (Watauga County line to 

North Fork New River) 
South Fork New River (not trout wa- 
ters) 
Cranberp,' Creek (.\lleghany County 

line to New Ri\er) 
Nathans Creek 
Peak Creek (headwaters to Trout Lake, 

except Blue Ridge Parkway waters) 
Trout Lake 
Roan Creek 
North Beaver Creek 



South Beaver Creek (headwaters to 

Ashe Lake) 
Pine Swamp Creek (all forks) 
Old Fields Creek 
Call Creek (West Prong Old Fields 

Creek) 
MiU Creek (except where posted against 

trespass) 

(C) Avery County: 

Nolichucky River (not trout waters) 
North Toe River (headwaters to Mitchell 

County line, except where posted 

against trespass) 

Plumtree Creek 

Roaring Creek 

Squirrel Creek 

Horse Creek 
Elk River (SR 1306 crossing to Tennessee 

State line) 
Elk River (Lees-McRae College boundary 

line to NC 194 bridge at Heaton, except 

where posted against trespass) 

Crunbi- ' rr> Crook 
Catawba River (not trout water) 

Johns River (not trout water) 

Wilson Creek |not Hatchery Supported 
trout water, sec Subparagraph (2) of 
Paragraph (a) of this Rule] 

Lost Cove Creek [not Hatchery Sup- 
ported trout water, see Subparagraph 
(4) of Paragraph (a) of this Rule] 

Rockhouse Creek 

Gragg Prong 

Webb Prong 

Andrews Crook Buck Timber Creek 
(not HatchePi' Supported trout water, 
see Subparagraph (2) of Paragraph 
(a) of this Rule] 

Car i jy (rarv Flat Branch [not Hatchery 
Supported trout water, see Subpara- 
graph (2) of Paragraph (a) of this 
Rulel 

Boyde Coffey Lake 

Archie Coffey Lake 
Linville Ri^•er (Sloop Dam to Blue Ridge 

Parkway boundary line) 

Milltimber Creek 
Linville River (Land Harbor line (below 

dam) to Ben /Vldridge line, except Bob 

Miller property] 

(D) Buncombe County: 

AH- r i troamt i locatc ' d eft gtun e landft, oxcopt 
thof . o lir . tt'd m Subparagiaph (-^ (4 
Paragraph (^ ef y*» Rulo. 
French Broad River (not trout water) 
Bia 1\7 Creek (ivy River) (Dillingham 
Creek to US 19-23 bndge) 



7:1 NORTH CAROLINA REGISTER April I, 1992 



35 



PROPOSED RULES 



Dillingham Creek (Comer Rock Creek 
to Big Iw Creek) 

Stony Creek 

Mineral Creek 

Carter C ' rook (portion ft©t »» game 
landr . ) 

Comer Rock Creek 
Reems Creek (Woodfm Watershed dam 

to US 19-23 bridge, except where 

posted against trespass) 
Svvarmanoa River (SR 2702 bridge near 

Ridgecrest to Sayles Bleacherv' in 

AsheviUe, except where posted against 

trespass) 
Bent Creek 

Lake Powhatan 

Cane Creek (headwaters to SR 3138 
bridge) 

(E) Burke County: 

Catawba River (not trout water) 

South Fork Catawba River (not trout 

water) 
Henry Fork (lower Morganton watershed 

line downstream to SR 1919 at I\7 

Creek) 
Jacob Fork (Shinny Creek to lower South 

Mountain State Park boundary) De- 

laved Han, est Regulations apply. See 

Subparagraph (a)(5) of this Rule. 
Johns Rner (not trout water) 

Parks Creek (not trout water) 

Carroll Creek (game lands above SR 
1405) 
Linville River (first bridge on SR 1223 

below Lake James powerhouse to 

Muddy Creek) 

(F) Caldwell County: 
Catawba River (not trout water) 
Johns Ri\er (not trout water) 

Wilson Creek (Phillips Branch to 
Browns Mountain Beach dam, ex- 
cept where posted against trespass) 
Estes .Mill Creek (not trout water) 
Thorpe Creek (falls to NC 90 bridge) 
Mulberry Creek (not trout water) 
Boone Fork (not Hatchery Supported 

trout water) 
Boone Fork Pond 

(G) Cherokee County: 

Aii streamf i localod e« game landa, oxcL'pt 
thoL ' O li '' tod » Subparagraph (-3^ ef 
Purugraph (-af t+f tfe+^ Ruiu. 
Hiwassee River (not trout water) 

Shulor Crt'L'k (hoadwatorc . to Tonnor .'. oo 
kftth- L ' xcopt ' i vhoro posted againi i t 
t re ! ' . pa ■ . .; ' . ) 
North ShiHil Cr ee ls (Crane Crook) 
(hoadvratorc te SRr 1325) 



Persimmon Creek 

Davis Creek 

Bald Crook 

Beaver Dam Creek (headwaters to SR 

1326bndge) 
Valley River 
Hyatt Creek 
Webb Creek 

Junaluska Creek (bridge at U.S. Forest 
Service road 440, Section No. 4, to 
Valley River) 
(11) Clay County: 

Ali otroamo located ©« game lands, except 
thos e hst e d wt Subparagraph f3f ef 
Paragraph fr*^ trf tbk- Rule. 
Hiwassee River (not trout water) 

Fires Creek (bear sanctuary line to SR 

1300) 
Tusquitee Creek (headwaters to lower 

SR BOObndge) 
Tuni Crook 

Chatuge Lake (not trout water) 
Shooting Creek (headwaters to US 64 

bndge'at SR 1338) 
Hothouse Branch 
\'ineyard Creek 
(I) Graham County: 

Ali Dtroamo located »« game lands, except 
thos e hsted t» Subparagraph {i} b^ 
Paragraph (*) »f tfek Rule. 
Little Tennessee River (not trout water) 
Calderwood Reservoir (Cheoah Dam to 

Tennessee State line) 
Cheoah River (not trout water) 
'bellow Creek 
West Buffalo Creek 
Santeeiah Rescnoir (not trout water) 
Santeelah Creek (Johns Branch to 

mouth) 
Huffman Creek (Littl e Buffalo Creek) 
Squalla Creek 
South Fork Squalla Crook 
Big Snowbird Creek (old railroad junc- 
tion to mouth) 
Mountain Cre e k (headwaters to M^ 

44a>; bridge) 
Long Creek (headwaters te lower bridge 
©ft S4^ 1 127) (portion not on game 
lands) 
Tulula Creek (headwaters to lower 

bndgeon SR 1211) 
Franks Creek 
Cheoah Reser\'oir 

Fontana Reservoir (not trout water) 
Stecoah Creek 
Sa' i vyer Crook 
Panther Creek 
(J) Hawood County: 



36 



7:1 iWRTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



AU streams located e» gamo lands, oxcopt 

thooo liotod m Subparagraph {¥f oi 

Paragraph (a) ef tfei* Rulo. 
Pigeon River (not trout water) 

Hurricane Creek 

Cold Springs Creek 

Jonathans Creek - lower (concrete 
bridge in Dellwood to Pigeon River) 

Jonathans Creek - upper (SR 1307 
bridge (west) to SR 1302 bndge] 

Hemphill Creek 

West Fork Pigeon Ri\er (headwaters to 
Champion International property 
line) 
(K) Henderson County: 

Att otroams located ©» game lando, e xc e pt 

those listed m Subparagraph (4) Para 

graph (a) ef thi* Rule. 
Broad River (not trout water) 
Rocky Broad River (one-half mile north 

of Bat Cave to Rutherford County line) 
Green River - upper (mouth of Bob 

Creek to mouth of Rock Creek) 
Green River - lower (Lake Summit Dam 

to Polk County line) [not hatcher\' 



supported trout water. See Subpara- 
graph (a)(2) of this Rule.) 

Camp Creek (Polk County lift* to S4^ 
44i4^ (SR 1219 to Polk County line) 

Big Hungry River 

Little Hungry River 
(L) Jackson County: 

AU otroams located ©» gamo lands, except 

thooo listed m Subparagraph (4^ ef 

Paragraph («^ »f Ak Rulo. 
Tuckasegec River (confluence with West 

Fork Tuckasegee River to bridge at 

Wilmont) 

Scott Creek (entire stream, except 
where posted against trespass) 

Johnson's plac e k* Scott Creek) 

North Fork Scott Crook 

Savannah Creek (Headwaters to 
Bradley's Packing House on NC 1 16) 

Greens Creek (Greens Creek Baptist 
Church on SR 1730 to Savannah 
Creek) 

Cullowhee Creek (TiUey Creek to 
Tuckasegee River, except portion 
posted for Western Carolina Univer- 
sity outdoor classroom) 

Bear Creek Lake 

Wolf Creek [not Hatchery Supported 
trout water, see Subparagraph (2) of 
Paragraph (a) of this Rule| 

Wolf Creek Lake 

Balsam I ake 



Tanasee Creek (not Hatchery Sup- 
ported trout water, see Subparagraph 
(2) of Paragraph (a) of this Rule) 

Tanasee Creek Lake 

West Fork Tuckasegee River (Shoal 
Creek to existing water level of Little 
Glenville Lake) 

Little Gl e nvill e Lak e 

Shoal Creek (Glenville Reservoir pipe- 
line to mouth) 
(M) Macon County: 

Att streams located »» gamo lands, e xc e pt 

thos e listed ift Subparagraph (-3) ef 

Paragraph fi*^ »f this Rulo. 
Little Tennessee River (not trout water) 
Nantahala River (Nantahala Dam to 

Swain County line) Delayed I larvest 

Regulations apply to the portion from 

Whiteoak Creek to the Nantahala 

Power and Light powerhouse discharge 

canal. See Subparagraph (a)(5) of this 

Rule. 

Queens Creek Lake 

property )m% te mouth) 
Bumingtown Creek 
Cullasaja River (Sequoah Dam to US 64 
bridge near junction of SR 1672) 
Eliijay Creek (except where posted 

against trespass) 
Skitty Creek (not trout water) 
Cliffside Lake 
Cartoogechaye Creek (US 64 bridge to 

Little Tennessee River) 
Tessentee Creek (Nichols Branch to 
Little Tennessee River, except where 
posted against trespassing) 
Savarmah River (not trout water) 

Big Creek (base of falls to Georgia State 
hne) 
(N) Madison County: 

Aii otroams located »» gamo lands, e xc e pt 
those listed m Subparagraph (5) ef 
Paragraph f»^ ©f Ais Rul e . 
French Broad River (not trout water) 
Shut-in Creek 

Spring Creek (junction of NC 209 and 
NC 63 to lower US Forest Service 
boundary line) 
Meadow Fork Creek (except Little 

Creek) 
Roaring Fork 
I ittle Creek 
Max Patch Pond 
Mill Ridge Pond 
Big Laurel Oeek (Mars Hill Watershed 
boundaPi" to Rices Mill Dam) 



7:1 NORTH CAROLINA REGISTER April I, 1992 



37 



PROPOSED RULES 



Shelton Laurel Creek (headwaters to 

NC 208 bndge) 
84g Crook (hcadv i at i jrs to lowor game 

kind bounduPf I 
Mill Creek 
SpiLlcom Creek 

Puncheon Fork (Hampton Creek to 
Bio Laurel Creek) 
(O) McDoweU County: 

Catawba River (not trout water) 
Buck Creek (not trout water) 

Little Buck Creek (game land portion) 
Curtis Creek (fish barrier to US 70 

bridge) 
Newberry Creek (game land portion) 
North Fork Catawba River (headwaters 

to North Cove School, SR 1 569) 
.•Vrmstrong Creek (Cato Holler hne 

downstream to upper Greenlee line) 
Mill Creek (upper railroad bridge to 
Old Fort D;im. except where posted 
against trespass) 
(P) Mitchell County: 

Nolichucky River (not trout water) 

Big Rock Creek (headwaters to fishing 

club property above AD. Harrel farm) 

Little Rock Creek (Green Creek Bridge 

to Big Rock Creek, except where 

posted aaainst trespass) 

Cane Creek'' (SR 1219 to Nolichucky 

River) 
Grassy Creek (East Fork Grassy Creek to 
mouth) 

East Fork Grassy Creek 
North Toe River (Avery County line to 
SR 1121, Ahapass Road) 
(Q) Polk County: 

All •' ir e am j' locol e d e« gam e Ian do. o?icopt 
tho -.t* [i - Aoii » Subparagraph (4^ »f 
Paragraph faf t4 t+a* Rule. 
Broad River (not trout water) 
North Pacolet River (Pacolet Falls to NC 
lOS bndge) 
Fork Creek (Fork Creek Church on SR 

1 1 28 to North Pacolet River) 
Big Fall Creek (portion below water 
supph rescr\oir) 
Green Ri\er (Hondoroon County lise 
(Fishstop Falls to mouth of Brights 
Creek) 

O 'l tin Croek (Groa i. o Creole) (Ippor 
1 ialhoil Covo Road bridg e &ft ^^ 
1 1 12 k* e xi -. ting L ak e j\dg e r >valor 
kT i ol. oxcopi wh e r e po ' : . tL ' d againf . t 
IroopaC ' Li) 
I aurol Branch 
1 iltlo (.^v i o C'rook 
ftt»; Cove Creek 



Rixhason Crook 

Camp Creek [Henderson County line 

(top of falls) to Green River] 
Fulloms Creek (SR 1154 to Green 
River) 
(R) Rutherford County: 

Broad River (not trout water) 
Rocky Broad River (Henderson County 
line to head of rapids at Goose Pond 
Hole, except where posted against tres- 
pass) 
(S) Stokes County; 

Dan River (lower Fhppin property line 
below SR 1416 to 200 yards down- 
stream from end of SR 1421) 
(T) Surry County: 

Yadkin River (not trout water) 
Ararat River (SR 1727 downstream to SR 
1759) Delayed Hanest regulations ap- 
ply. See Subparagraph (5) of Para- 
graph (a) of this Rule. 
Stewarts Creek (not trout water) 
Pauls Creek (\'irginia State line to SR 

1625) 
Fisher River (Cooper Creek) (\'irginia 
State hne to NC 89 bridge) 
Little Fisher Ri\'er (Virginia State line 
to NC 89 bndge) 
Merritt Creek 
(U) Swain County: 

AH- otroamo locatod »» gamo lands, oxcopt 
tho ' - ' Q lif . t e d ift Subparagraph f3-f »f 
Paragraph (*^ »f tl»^ Ptul e . 
Little Tennessee Ri\er (not trout water) 
Calderwood Reservoir (Cheoah Dam to 

Tennessee State line) 
Cheoah Reservoir 
Tuckasegee River (not trout water) 

Deep Creek (Great Smoky Mountains 
National Park boundary line to 
Tuckasegee River) 
Oconaluftee River (not trout water) 
ConneUy Creek 
.Vlarka Creek 
Nantahala Ri\er (Macon County line to 
existing Fontana Lake water level) 
(\') Franss Ivania County: 

AH otroams locatod tv» gam e lands, e xc e pt 
thoGO list ad ift Subparagraph (-34 ef 
Paragraph (*> &f tfer Rulo. 
French Broad Ri\er (junction of west and 

north forks to I'S 2"6 bridge) 
Little Rivor fnot- trout wator) 

Laurel Crook (hoad' . vators te- oxi ' Jting 
Cascad e I ako wator losol) 
Da\idson Ri\er (game land boundary to 
( ■ \\ er\' Creek to Ecusta intake) 



3X 



7:1 NORTH CAROLLXA REGISTER April /. 1992 



PROPOSED RULES 



East Fork French Broad River (Glady 

Branch to French Broad River) 
Middlo Fork Franch Broad Rivor 
West Fork French Broad River (SR 1312 

and SR 1309 intersection to junction 

of west and north forks) 
Savannah River (not trout water) 
Horsepasture Ri\er (Jackson County Une 

to existing Lake Jocassee water level) 
Thompson River (SR 1152 to South 

Carolina state line, except where posted 

against trespass) 

Gumbottom Craok (SR- -1444 to 
Thompf i on Ri' i or) 
(W) Watauga County: 

New River (not trout waters) 

North Fork New River (headwaters to 

Ashe County line) 
South Fork New River (not trout water) 

Meat Camp Creek 

Norris Fork Creek 

Howards Creek (downstream from 
lower falls) 
Middle Fork New River (Lake Chetola 

Dam to South Fork New River) 
Yadkin River (not trout water) 

Stony Fork (headwaters to Wilkes 
County line) 

Elk Creek (headwaters to gravel pit on 
SR 1508, except where posted against 
trespass) 
Watauga River (SR 1559 to SR 1114 

bridge) 

Beech Creek 

Buckeye Creek Reservoir 

Coffee Lake 

Laurel Creek 

Cove Creek (SR 1233 bndge at 
Zionville to SR 1233 bridge at 
.Amantha) 

Dutch Creek (second bridge on SR 
1134 to mouth) 

Crab Orchard Creek 

Boone Fork (headwaters to SR 1562) 
(X) Wilkes County: 

'Yadkin Ri\ er (not trout water) 

Roanng Ri\er (not trout water) 

East Prong Roaring Ri\er (Bullhead 

Creek to^ Brewer's^ Mill on SR 1943) 

(Delayed harvest regulations apply to 

portion on Stone Mountain State Park) 

See Subparagraph (5) of Paragraph (a) 

of this Rule. 
Stone Mountain Creek (Alleghany 

County line to Bullhead Creek) 
Middle Prong Roanng River (headwaters 

to second bridge on SR 1736) 



Harris Creek (end of SR 1716 to 

mouth) 
Pell Branch Pond 
Boundary Line Pond 
West Prong Roaring River (not trout wa- 
ters) 

Pike Creek 
Pike Creek Pond 
Rcddies River (not trout water) 

Middle Fork Reddies River (Clear 
Prong) (headwaters to bridge on SR 
1580) 
South Fork Reddies River (headwaters 

to NC 16 bridge) 
North Fork Reddies Ri\er (Vannoy 
Creek) (headwaters to L'nion School 
bridge on SR 1559) 
North Prong Reddies River (Damell 
Creek) (downstream ford on SR 1569 
to confluence with North Fork) 
Lewis Fork Creek (not trout water) 
South Prong Lewis Fork (headwaters 

to Lewis Fork Baptist Church) 
Fall Creek (except portions posted 

against trespass) 
Stony Fork Creek (headwaters to Mt. 
Zion bridae near intersection of SR 
1155 and SR 1167) 
C^') Yancey County: 

Nohchucky River (not trout water) 
Cane River (Cattail Creek to Bowlens 

Creek) 
Bald Mountain Creek (except portions 

posted against trespass) 
Bald Crock (-ftot- trout water) 
I icki i killL't Crock 
Bk W'allow (Schronco Crook) 
Indian Creek (not trout water) 
Price Creek (junction of SR 1120 and 
SR 1121 to Indian Creek) 
South Toe River (Clear Creek to lower 
boundar>' line of Yancey County recre- 
ation park except where posted against 
trespass) 
(2) Wild Trout Waters. All designated public 
mountain trout waters located on game 
lands H+ aft4 ea*t »f ^"uncoy. McDovroU 
aft4 Ruthorford Countioo are classified as 
wild trout waters unless classified other- 
wise. The trout waters listed in this Sub- 
paragraph are also classified as wild trout 
waters. On game lands all tributaries to 
wild trout waters are also classified as wild 
trout waters. 

(A) Alleghany County: 
Ramey Creek (entire stream) 

(B) Ashe County: 



7.1 NORTH CAROLINA REGISTER April I, 1992 



39 



PROPOSED RULES 



Big Horse Creek (Viramia State Line to 
SR 1361 bndge) Catch and 
Release Artillcial Lures Only Regu- 
lations apply. See Subparagraph (a)(3) 
of this Rule. 

(C) A\en,' County; 
Birchllcld Creek (entire stream) 

Buck 1 imber CroL'k (garni. ' kift4 boundary 
dc i vn ' - i trL ' am V» i^r mouth at- Wilf . on 
Crook, oxcluding Rrri- I unJ Branch) 
Carv Wrtt- Branch ( hoadwatoro t« uppt - T 
ganio land boundaP r , L'.xcluding iVrchio 
Coffoy aft4 Boydj CoIYl ' v LqIcoo. afi4 
from lo^vor gam e km4 boundary te 
mouth lit- Buck limbur Crock) 
Cow Camp Creek (entire stream) 
Cranberr." Creek (entire stream) 
Horse Creek (entire stream) 
Jones Creek (entire stream) 
Kentucky Creek (entire stream) 
North Harper Creek (entire stream) 

(non gamo lafi4 portionc i ) 
Rockhouse Creek (entire stream) 
South Harper Creek (entire stream) 
Wilson Creek (upper ft*tt C'rump property 
lt»t» do' i vnotroam **»• tbe upp < ?r gam e 
land boundary ) (Catch and 

Release .Vrtificial Lures Only regu- 
lations apply. See Subparagraph (a)(3) 
ot this Rule.) 

(D) Buncombe County: 

Carter Creek (game land portion) (Catch 
and Release Artificial Lures only regu- 
lations apply. See Subparagraph (3) of 
Paragraph (a) of this Rule. 

(E) Burke County: 

All waters located on South Mountain 
State Park, except the mam stream of 
Jacob Fork between the mouth of Shinny 
Creek and the lower park boundary where 
delayed har\'est regulations apply. See 
Subparagraph (5) of Paragraph (a) of this 
Rule. 

(F) Caldwell County: 

Buffalo Creek (headwaters to lower Dahl 

property line) 
Joe Fork (Watauga County line to falls) 
Rockhouse Creek (entire stream) 

(G) Cherokee County: 
Bald Creek (entire stream) 

North Shoal Creek ( Crane Creek) 

(headwaters to SR 1325) 
Shulcr Creek (headwaters to Tennessee 

State line, except where posted against 

trespass) 
(H) (-Q+ Clay County: 

I'uni Creek (entire stream] 
Buck Crook ( acmio hm4 portion) 



FiroG Crook (gamo feft4 portion) 
(I) fW+ Graham County: 
&is Snow 8«4 Crook (up ' jtroam from »W 

railroad junction) 
Slick Rock Crook (ontiro str e am) 
HulTman Creek (Little Buffalo Creek) 

(entire stream) 
Mountain Creek (game lands boundary to 

SR 1138 bridge) 
SauAer Creek (entire stream) 
South Fork Squalla Creek (entire stream) 
(4-^ 1 lay wood County: 

ft*g Crook (gam e la«4 portion) 

Sig Fiaot Fork Pigeon Rivor (gamo k*n4 

portion) 
Cataloochoo Crook (game land portion) 
Little Faot Fork Pigeon Rivor (game k*ft4 

portion) 
Middle Prong We^ Fork Pigeon Pi.ivor 
(J) Henderson County: 
8w CrcHjk (entir e otream) 
Bradley Crook (entire f . tream) 
Fletcher Creek (entire ctroom) 
South Millo Ri^ i or (game feft4 portion) 
Green Riyer (I ake Summit Dam to Polk 
County line) 
(K) Jackson County: 

Canev Fork Crook (game land portion) 
Buff Creek (SR 1457 bndge below Bill 



Johnson's place to Scott Creek ) 
Gage Creek (entire stream) 
North Fork Scott Creek (game lands 

boundary' to mouth) 
Tanasee Creek (entire stream) 
Whitewater Riyer (downstream from Sil- 

yer Run Creek to South Carolina State 

line) 
Wolf Creek (entire stream, except Balsam 

Lake and Wolf Creek I ake) 
(L) Macon County: 

Nantahala Pviver (upotream from beaf 

f . anctuapy lifte at P».uinbow Spnngr . ) 
Roaring Fork Creek (Game lands bound- 
ary' to mouth) 
(M) Madison County: 

Big Creek (headvyaters to lower game land 

boundary' ) 
I it tie Crreek (entire stream) 
(N) (rV^ .Mitchell County: 

Green Creek (headwaters to Green Creek 

Bridge, except where posted against 

trespass) 
Little Rock Creek (headwaters to Green 

Creek Bridge, except where posted 

against trespass) 
Wiles Creek (game land boundary to 

mouth) 
(O) Polk County: 



40 



7:1 NORTH CAROLINA REGISTER April 1. 1992 



PROPOSED RULES 



Big Fall Creek (portion above water sup- 
ply reservoir) 

Green River (Henderson County line to 
I'ishstop Falls) 

Little Cove Creek (entire stream) 
(P) (-Xf Transylvania County: 

i\vL'p >' Crook (onliro stream) 

Bradley Crook (ontiro otroum) 

Dasidi . on Rivor (upi . troam si \vifTy 
Crook, Qxcluding Grogan Crook) [Catch 
aft4 Roloaso ¥W Fir i hing Only rogu 
lations apply. See iSubparagraph (4) ef 
Paragraph f»^ trf thk Rulo | 

I ooidng CjlafiU Oook (ontiro ' itroam) 

North Fork Broad Riser |gamo fafni por 
t+»ft upotroam from L ong Branch 
(Courthou ' .io Crook)] 

Middle Fork French Broad River (entire 
stream) 

South Fork Mills River (entire stream) 

WTiitevvatcr River (downstream from Sil- 
ver Run Creek to South Carohna State 
line) 
(Q) fO^ Watauga County: 

Watauga River (Avery- County line to SR 
1559) 

Boone Fork (Blue Ridge Parkway 
boundary line to Watauga River) 
[Catch and Release Fly Fishing Only 
regulations apply. See Subparagraph 
(4) of Paragraph (a) of this Rule.) 
Flowards Creek (headwaters to lower 
falls) 
(R) {^ Wilkes County: 

Big Sandy Creek (portion on Stone 
Mountain State Park) 

Garden Creek (portion on Stone Moun- 
tain State Park) 

Harris Creek and tributaries [portions on 
Stone Mountain State Park) [Catch and 
Release Artificial Lures Only regu- 
lations apply. See Subparagraph (4) of 
Paragraph (a) of this Rule.j 

Widow Creek (portion on Stone Moun- 
tain State Park) 
(S) fQ^ Yancey County: 

FickskiUet Creek (entire stream) 

.Middle Creek (game land boundary to 
mouth) 

Rock Creek (game land boundary' to 
mouth) 

South Toe River (game land boundary 
downstream to Clear Creek) 
(3) Catch and Release /Vrtificial Lures Only. 

Those portions of designated wild trout 

waters as listed in this Subparagraph, in- 
cluding tributaries except as noted, are 

further classified as Catch and 



Release/Artificial Lures Only waters. 

Only artificial lures having one single 

hook may be used. No fish may be har- 
vested or be in possession while fishing 

these streams: 
Harris Creek and tributaries (portions on 

Stone Mountain State Park, Wilkes 

County) 
Big Horse Creek, excluding tributaries 

(Virginia state line to SR 1361 bndge, 

Ashe County) 
Three Top Creek (portion located on Bluff 

Mountain Game Lands, Ashe County) 
Wilson Creek (hoadyvatoro to gam e kmdri 

boundaP i' abovo tidgomont, excluding 

tributario j i. (game lands portion, including 

tributaries, Avery County) 
Upper Creek, Yancey County 
Lower Creek, Yancey County 
Tuckasegee River including all tributaries 

above the Clarke property, Jackson 

County 
Flat Creek, Jackson County 
Carter Creek (game lands portion). 

Buncombe County 

(4) Catch and Release Artificial Flies Only. 
Those portions of designated wild trout 
waters as hsted in this SubpiU^agraph, in- 
cluding tributaries except as noted, are 
further classified as Catch and Release Fly 
Fishing Only waters. Only artificial tlies 
having one single hook may be used. No 
fish may be harvested or be in possession 
while fishing these streams: 

Boone Fork (portion between Blue Ridge 
Parkway boundary and the Watauga 
Ri\er, Watauga County) 

South Toe River (portion from the concrete 
bridge above Black Mountain 
Campground downstream to the game 
land boundary, excluding Camp Creek 
and Neals Creek, Yancey County) 

Lost Cove Creek (game land portion, ex- 
cluding Gragg Prong and Rockhouse 
Creek, Avery County) 

Davidson River (headwaters to Avery Creek 
excluding Avery Creek, Looking Glass 
Creek, and Grogan Creek, Fransylvania 
County) 

(5) Delayed Harvest. Those portions of des- 
ignated Hatchery Supported Trout Waters 
as listed in this Subparagraph, excluding 
tributaries except as noted, are further 
classified as Delayed Harvest Waters. 
Between 1 .March and the Friday before 
the first Saturday in June, inclusive, only 
artificial lures with one single hook may 
be used. No fish may be harvested or be 



7:1 NORTH CAROLINA REGISTER April I, 1992 



41 



PROPOSED RULES 



in possession while fishing these streams 
during this time. On the first Saturday in 
June these streams revert to Hatchery 
Supported Waters regulations: 

Ararat River (SR 1727 downstream to SR 
1759, Surry County) 

East Prong Roaring River (portion »ft Stono 
Mountain Stat e Park, (from Bullhead 
Creek downstream to the lower Stone 
Mountam State Park boundary, Wilkes 
County) 

Jaoobc . Jacob Fork (Shinny Creek to lower 
South Mountain State Park boundarv', 
Burke County) 

Nantahala River (portion from Whiteoak 
Creek to the po' i ' i 'L ' rhou ' j&. Nantahala 
Power and I ight power house discharge 
canal. Swam County) 
(b) Fishmg in Trout Waters 
(1) Hatchery Supported Trout Waters. It is 
unlawful to take fish of any kind by any 
manner whatsoever from designated pub- 
lic mountain trout waters during the 
closed seasons for trout fishing. The sea- 
sons, size limits, creel limits and pos- 
session limits apply in all waters, whether 
designated or not, as public mountain 
trout waters. Except in power reservoirs 
and city water supply reservoirs so desig- 



nated, it is unlawful to fish in designated 
public mountain trout waters with more 
than one hne. Night fishing is not al- 
lowed in most hatchery supported trout 
waters on game lands [see 15A NCAC 
lOD .0004(b)(1)]. 
(2) Wild Trout Waters. Except as otherwise 
provided in Subparagraphs (3) and (4) of 
Paragraph (a) of this Rule, the following 
rules apply to fishing in wild trout waters. 

(A) Open Season. There is a year round 
open season for the licensed taking of 
trout. 

(B) Creel Limit. The daily creel limit is 
four trout. 

(C) Size Limit. The minimum size limit is 
seven inches. 

(D) .Manner of Taking. Only artificial lures 
having only one single hook may be used. 
No person shall possess live or preserved 
bait while fishing wild trout waters. 

(E) Night Fishing. Fishing on wUd trout 
waters is not allowed between one-half 
hour after sunset and one-half hour before 



sunnse. 



Statutory 
113-292. 



Authority G.S. 113-134; 113-272; 



.0305 OPKN SEASONS: CREEL AND SIZE LIMITS 

(a) Generally. Subject to the exceptions listed in Paragraph (b) of this Rule, the open seasons and 
creel and size limits are as indicated in the following table: 



GAME FISHES 



DAILY CREEL 
LIMITS 



MINIMUM 
SIZE LIMITS 



OPEN SEASON 



Mountain Trout: 
Wild Irout 
Waters 

IlatchePv' Sup- 
ported Trout 
Waters 



7 in. 
(e.xc. 15) 

None 



All year 
(exc. 2) 

All year, except 
March 1 to 7:00 a.m. 
on first Saturday 
in April 

(exes. 2 & 3) 



Muskcllunge 
and f iger Musky 

Chain Pickerel 
(Jack) 



2 
None 



30 in. 



None 



ALL YEAR 



ALL YEAR 



WaUeve 



Sauger 



(exes. 9 & 10) 



None 
(exc. 9) 

15 in. 



ALL YEAR 



ALL YEAR 



42 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



PROPOSED RULES 



Black Bass: 



Largemouth 


5 

(exc. 10) 


14 in. 
(exes. 4, 
8& 11) 


ALL YEAR 

(exc. 13) 


Smalknouth 
and Spotted 


5 

(exc. 10) 


12 in. 
(exes. 4, 
8& 11) 


ALL YEAR 


White Bass 


25 


None 


ALL YEAR 


Sea Trout (Spot- 
ted or Speekled) 


None 


12 in. 


ALL YEAR 


Flounder 


None 


13 in. 


ALL YEAR 


Red drum (channel 
bass, red fish, 
puppy drum) 


No no 5 


4428 in. 


ALL YEAR 


Striped Bass 
and their hybrids 
(Moronc IKbrids) 


8 aggregate 
(exes. 1 & 6) 


16 in. 
(exes. 1, 
6& 12) 


ALL YEAR 

(exes. 6 & 16) 


Kokanee Salmon 


7 


None 


ALL YEAR 


Panfishes 


None 

(exes. 5 & 14) 


None 
(exc. 14) 


ALL YEAR 

(exc. 5) 


NONGAME FISHES 


None 


None 


ALL YEAR 

(exc. 7) 



(b) Exceptions 

(1) In the Dan River upstream from its confluence with Bannister River to the Brantly Steam Plant 
Dam, and in John II. Kerr, Gaston, and Roanoke Rapids Rcser\'oirs, the creel limit on striped 
bass and Morone hybrids is four in the aggregate and the minimum size limit is 20 inches. 

(2) In designated public mountain trout waters the season for taking all species of fish is the same 
as the trout fishing season. There is no closed season on taking trout from Nantahala River and 
all tributaries (excluding impoundments) upstream from Nantahala Lake, and the impounded 
waters of power reservoirs and municipaUy-owned water supply reservoirs open to the public for 
fishing. 

(3) L'ndcr an agreement with Tennessee, the minimum size limit on trout in Calderwood Reservoir 
is seven inches. 

(4) Bass taken from streams designated as public mountain trout waters or from Calderwood Res- 
ervoir may be retained without restriction as to size limit. 

(5) On Mattamuskcct Lake, special federal regulations apply. 

(6) In the inland fishing waters of Cape Fear, Neuse and Tar Rivers and their tnbutaries extending 
upstream to the first impoundment, the daily creel limit for striped bass and their hybrids is one 
fish and the minimum length limit is 18 inches. In the Roanoke Ri\er up to the first 
impoundment, from July 1 through March 31 and June 1 through June 30 the daily creel limit 
for r . trippoJ striped bass is one fish and the minimum length limit is 1 8 inches; from April 1 to 
May 31 the daily creel limit is three tish, no fish between the lengths of 22 inches and 27 inches 
may be retained, and the minimum length limit is 16 inches, except no fish may be retained in 
Roanoke River and its tributaries including Cashic, Middle and Eastmost rivers from May 1 to 
December 31, 1991. 

(7) See 15A NCAC IOC .0407 for open seasons for taking nongame fishes by special devices. 

(8) The maximum combined number of black bass of all species that may be retained per day is 
five fish, no more than two of which may be smaller than the appficable minimum size limit. 



7:1 NORTH CAROLINA RECISTER April I, 1992 



43 



PROPOSED RULES 



The minimum size limit for all species of black bass is 14 inches, with no exception in Lake Luke 
Marion in Moore County, in Reedy Creek Park lakes in Mecklenburg County, and in Currituck 
Sound and tributaries north of Wright Memorial Bridge; in North River and tributaries in 
Cumtuck and Camden Counties north of a line between Camden Point and the end of SR 1 124. 
In and west of Madison, Buncombe, Henderson and PoLk Counties the minimum size limit is 
12 inches. In B. Everett Jordan Reservoir a minimum size limit of 16 inches, with no exception, 
applies to largemouth bass. In Falls of Neuse Reser\'oir, east of SR 1004, Sutton Lake and 
Tuckertown Lake no black bass between the lengths of 12 inches and 16 inches may be retained, 
and the minimum size limit for black bass is 16 inches, except that the daily creel may contain 
two black bass of less than 12 mches in length. In W. Kerr Scott Resen.oir there is no minimum 
size limit for spotted bass. 
(9) A minimum size limit of 15 inches applies to walleye taken from Lake James and its tributaries, 
and the daily creel limit for walleye is four fish in Linville River upstream from the NC 126 
bridge above Lake James. 

(10) The creel Umit for black bass and walleye taken from Calderwood Reservoir is 10. 

(11) Ihe minimum size Imiit for all black bass, with no exception, is 18 inches in the following 
trophy bass lakes: 

(A) Cane Creek Lake in Union County; and 

(B) Lake Thom-A-Lex in Davidson County. 

(12) In ail impounded inland waters and their tributaries, except those waters described in Ex- 
ceptions (1), the daily creel limit of striped bass and their hybrids may include not more than 
two fish of smaller size than the minimum size limit. 

(13) In Cane Creek Reser\'oir (Orange County) the season for taking largemouth bass is closed. 
(14j In Lake Tiller>", Ealls Lake, Badin Lake, and Tuckertown Lake a daily creel limit of 20 fish and 

a minimum size limit of 8 inches apply to crappie. 

(15) In Shck Rock Creek the minimum size is 7 inches for brook trout and 10 inches for brown and 
rainbow trout. 

(16) In designated inland fishing waters of Roanoke Sound, Croatan Sound, .Albemarle Sound, 
Chowan River, Cumtuck Sound, .-Mligator River, Scuppemong River, and their tnbutaries (ex- 
cluding the Roanoke River and Cashie River and their tributaries), striped bass fishing season, 
size limits and creel limits shall be the same as those established by duh' adopted rules or proc- 
lamations of (* clo ' jC ' d ' ■ vhon adjacL'nt joint ©f coaf ' tal fu ' lung >vaters af«» cloai-'d to hook aft4 lift* 
fu ' hmg fof ' jtripL'd ba*s hy the Marine Fisheries Commission in adjacent joint or coastal fishing 
waters. 



Stdiuiory Authority G.S. 1 13-134; 113-292; 113-304; 113-305. 



SUBCHAPTER lOD - GAME L.WDS 
REGLL.VTIONS 

.0003 HLNTING ON GAME L.\NDS 

(a) Safet\' Requirements. No person while 
hunting on any designated game land shall be 
under the influence of alcohol or any narcotic 
drug, or fail to comply with special restrictions 
regarding the use of the Blue Ridge Parkway 
where it adjoins game lands listed in this Rule. 

(b) Traffic Requirements. No person shall 
park a vehicle on game lands in such a manner 
as to block traffic, gates or otherwise pre\'ent ve- 
hicles from using any roadway. 

(cj Tree Stands. It is unlawful to erect or to 
occupy, for the purpose of hunting, any tree 
stand or platform attached by nails, screws, bolts 
or wire to a tree on any game land designated 
herein. This prohibition shall not apply to lag- 
screw steps or portable stands that are removed 



after use with no metal left remaining in or at- 
tached to the tree. 

(d) Tune and Manner of Taking. Except 
where closed to hunting or limited to specific 
dates by these regulations, hunting on game lands 
is permitted durmg the open season for the game 
or furbearing species being hunted. On managed 
waterfowl impoundments, hunters shall not enter 
the posted impoundment areas earlier than 4:00 
a.m. on the pennitted huntmg dates, and hunting 
is prohibited after 1:00 p.m. on such hunting 
dates: decoys may not be set out prior to 4:00 
a.m. and must be remo\"ed by 3:00 p.m. each 
day. No person shall operate any vessel or ve- 
hicle powered by an internal combustion engine 
on a managed waterfowl impoundment. 

No person shall attempt to obscure the sex or 
age of any bird or animal taken by se\ering the 
head or any other part thereof or possess any 
bird or animal which has been so mutilated. 



44 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



PROPOSED RULES 



No person shall place, or cause to be placed on 
any game land, salt, grain, fruit, or other foods 
without prior written authorization of the com- 
mission or its agent. No person shall take or at- 
tempt to take any game birds or game animals 
attracted to such foods. 

No hve wild animals or wild birds shaU be re- 
moved from any game land. 

(e) Hunting Dates: 

(1) Doves may be taken on the following 
game lands and dove hunting is limited to 
Mondays, Wednesdays, Saturdays and to 
Thanksgiving, Christmas and New Year's 
Days within the federally-announced sea- 
son: 

Buncombe County— Browntown Farms 

Game Land 
Guilford County-Guilford County Farm 

Game Land 
Lenoir County— CasweU Farm Game Land 
Wayne County— Cherry Farm Game Land 

(2) Any game may be taken during the open 
seasons on the following game lands and 
hunting is limited to Mondays, Wednes- 
days, Saturdays and Thanksgiving, 
Christmas and New Year's Days. In ad- 
dition, deer may be taken with bow and 
arrow on the opening day of the bow and 
arrow season for deer. Raccoon and 
opossum hunting may continue until 7:00 
a.m. on Tuesdays, until 7:00 a.m. on 
Thursdays, and until midnight on Satur- 
days. Additional restrictions apply as in- 
dicated in parentheses following specific 
designations: 

Ashe County--Carson Woods Game Land 
Bertie County--Bertie County Game Lands 
Bladen County- -Bladen Lakes State Forest 
Game Lands (Handguns may not be car- 
ried and, except for muzzle-loaders, rifles 
larger than .22 cahber rimfire may not be 
used or possessed. On tk» Brooco Tract 
aft4 the Singletary Tract deer and bear 
may be taken only by still hunting. Deer 
of either sex may be taken on the first 
Wednesday after Thanksgiving and on the 
second Saturday after Thanksgiving.) 
Caswell County--Caswel] Game Land (That 
part dor . ignutL'd aft4 posted as a "saf e ty 
zone" is clof f od *«• all hunting aB4 trap 
ping, aft4 cntrv' upon ' juch afea fof atw- 
puqioi f O. e xcept by authorij'.ud pc ' r - jonnt ' l 
ift ri«* pcrfurmanoo (4 th*4f duti e;. . j* pf©- 
hibiti.'d. Oft art'ao posted as "r e stricted 
Eones" hunlinu is hmitod te- bew aft4 af- 



ro' . ' i . 



Catawba and Iredell Counties— Catawba 
Game Land (No deer mav be taken from 



the tract known as Island Point and deer 
mav be taken with bow and arrow only 
from the tract known as Molly's Back- 
bone.) 

Lenoir County--H.M. BLzzell, Sr., Game 
Land 

Onslow County-White Oak River 
Impoundment Game Land (In addition 
to the dates above indicated, waterfowl 
may be taken on the opening and closing 
days of the applicable waterfowl seasons.) 

Pender County— HoUy Shelter Game Land 
(In addition to the dates above indicated, 
waterfowl may be taken on the opening 
and closing days of the applicable 
waterfowl seasons. Deer of either sex may 
be taken on Mondavs, Wednesdays, and 
Saturdays from the first Wednesday after 
Thanksgiving and »«• the second through 
the third Saturday after Thanksgiving.) 

Richmond, Scotland and Moore Counties- 
Sandhills Game Land (The regular gun 
season for deer consists of the open hunt- 
ing dates from the second Monday before 
Thanksgiving to the third Saturday after 
Thanksgiving except on the field trial 
grounds where the gun season is from the 
second Monday before Thanksgiving to 
the Saturday following Thanksgiving. 
Deer may be taken with bow and arrow 
on all open hunting dates during the bow 
and arrow season, as well as during the 
regular gun season. Deer may be taken 
with muzzle-loading firearms on Monday, 
Wednesday and Saturday of the second 
week before Thanksgiving week, and 
during the regular gun season. Except for 
the deer seasons above indicated and the 
managed either-sex permit hunts, the field 
trial grounds are closed to all hunting 
during the period October 22 to March 
31. In addition to the regular hunting 
days, waterfowl may be taken on the 
opening and closing days of the apphcable 
waterfowl seasons.) Wild turkey hunting 
is by permit only. 

Robeson County--Bullard and Branch 
Hunting Preserve Game Land 

Stokes County--Sauratown Plantation 
Game Land 

Yadkin County--! Iunts\illc Community 
Famis Game Land 
(3) Any game may be taken on the following 
game lands during the open season, except 
that: 

(A) Bears ma\' not be taken on lands des- 
ignated and posted as bear sanctuaries: 



7:1 NORTH CAROLINA REGISTER AprHI, 1992 



45 



PROPOSED RULES 



(B) Wild boar may not be taken with the 
use of dogs on such bear sanctuaries, and 
wild boar may be hunted only during the 
bow and arrow seasons, the muzzle- 
loading deer season and the regular gun 
season on male deer on bear sanctuaries 
located in and west of the counties of 
Madison, Buncombe. Henderson and 
Polk; 

(C) On game lands open to deer hunting 
located in or west of the counties of 
Rockingham, Guilford, Randolph, 
Montgomerv' and .Ajison. the following 
rules apply to the use of dogs during the 
reg;ular season for hunting deer with guns: 
(i) Except for the counties of Cherokee, 

Clay, Jackson. Macon. Madison, Polk, 
and Swain, game birds may be hunted 
with dogs, 
(li) In the counties of Cherokee, Clay, 
Jackson, Macon, Madison, Polk, and 
Swain, small game in season may be 
hunted with dogs on all game lands ex- 
cept on bear sanctuaries. 

(D) On Croatan. Goose Creek, New Hope 
and Shearon Harris Game Lands 
waterfowl may be taken only on Mon- 
days, Wednesdays, Saturdays; on 
Thanksgiving, Christmas and New 'V'ear's 
Days; and on the opening and closing 
days of the applicable waterfowl seasons; 
except that outside the posted waterfowl 
impoundments on Goose Creek Game 
Land huntmg any waterfowl in season is 
permitted any week day during the last 10 
days of the regular duck season as estab- 
lished by the U.S. Fish and Wildlife Scr- 
\ice; On the Pamlico Point. Campbell 
Creek, and Spring Creek impoundments 
a special permit is required for hunting on 
those opening and closing days of the 
waterfowl season as well as on those Sat- 
urdays that fall after No\cmber 1 of the 
season and on Thanksgiving and New 
\'ear's day; 

(E| On the posted waterfowl 

impoundments of Gull Rock Game Land 
hunting of any species of uildlife is limited 
to Mondays, Wednesdays, Saturdays; 
Thanksgi\ing. Christmas, and New Year's 
Days; and the opening and closing days 
of the applicable waterfowl seasons; 

(F) On bear sanctuaries in and west of 
Madison, Buncombe. Henderson and 
Polk Counties dogs may not be trained 
or allowed to run unleashed between 
March 1 and October 1 1; 



(G) On New Lake, Punao River, and Gull 
Rock Game Lands deer of either sex may 
be taken from the first Wednesday after 
rhanksgi\ing through the third Saturday 
after "1 hanksgi\'ing. 

(H) fGf On Butner- Falls of Neuse and Per- 
son Game Lands waterfowl may be taken 
only on Tuesdays, Thursdays and Satur- 
days, Christmas and New Year's Days, 
and on the opening and closing days of 
the applicable waterfowl seasons; 

ill fW^ On Angola Bay, Butner-Falls of 
Neuse, Croatan, Goose Creek, and 
Hofmann Forest Game Lands deer of ei- 
ther sex may be taken from the first 
Wednesday after Thanksgiving through 
the following Saturday; 

(J) (4-^ Horseback riding is allowed on the 
Caswell and Thurmond Chatham game 
lands only during June, July, and August 
and on Sundays during the remainder of 
the year except during open turkey and 
deer seasons. Horseback riding is allowed 
only on roads opened to vehicular traffic. 
Participants must obtain a game lands Li- 
cense prior to engaging in such activity; 

(K) fJ^ On the posted waterfowl 
impoundments on the New Hope and 
Butner-Falls of Neuse game lands a spe- 
cial permit is required for all waterfowl 
hunting. 

(L) <^¥crf Additional restrictions or modifica- 
tions apply as indicated in parentheses 
following specific designations: 

.Alexander and Caldwell Counties— Brushy 
.Mountains Game Lands 

Anson County--.Anson Game Land 

.•\nson. Montgomery. Richmond and Stanlv 
(rounties--I'ee Dee Ri\cr Cjamc L ands 

Ashe County--Flk Ridge Game Lands 

Ashe County--Cherokee Game Lands 

Ashe and Watauga Counties--I:Lk Knob 
Game Land 

Aver)', Buncombe, Burke, CaldwcU, 
Ha>'wood, Henderson, Jackson, Madison, 
McDowell. Mitchell, Transylvania, 
Watauga and \'ancey Countics--Pisgah 
Game Lands (Harmon Den and 
Sherwood Bear Sanctuaries in Ha^nvood 
County are closed to hunting raccoon, 
opossum and wildcat. Iraining raccoon 
and opossum dogs is proliibited from 
March 1 to October 1 1 in that part of 
Madison County north of the French 
Broad Ri\er, south of L'S 25-70 and west 
ofSR 1319.) 

Bertie and Washington Counties--Bachelor 
Bav Game Lands 



46 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



PROPOSED RULES 



Beaufort and Pamlico Counties-Goose 

Creek Game Land 
Brunswick County— Green Swamp Game 
Land 

Burke and Cleveland Counties-South 
Mountains Game Lands 

Caldwell, Watauga and Wilkes Counties— 
Yadkin Game Land 

Carteret, Craven and Jones Counties— 
Croatan Game Lands 

Chatham County— Chatham Game Land 

Chatham, Durham, Orange, and Wake 
Counties— New Hope Game Lands (On 
areas posted as "archery zones" hunting 
is limited to bow and arrow. Horseback 
riding, including all equine species, is 
prohibited.) 

Chatham and Wake Counties— Shearon 
Harris Game Land 

Cherokee, Clay, Graham, Jackson, Macon, 
Swain and Transylvania Counties— 
Nantahala Game Lands. Raccoon and 
opossum may be hunted only from sunset 
Friday until sunrise on Saturday and from 
sunset until 12:00 midnight on Saturday 
on Fires Creek Bear Sanctuary in Clay 
County and in that part of Cherokee 
County north of US 64 and NC 294, east 
of Persimmon Creek and Hiwassee Lake, 
south of Hiwassee Lake and west of 
Nottely River; in the same part of 
Cherokee County dog training is prohib- 
ited from March 1 to October 11. It is 
unlawful to train dogs or allow dogs to 
run unlcased on any game land in 
Graham County between March 1 and 
October 11. 

Chowan County— Chowan Game Land 

Cleveland County— Gardner-Webb Game 
Land 

Craven County--Neuse River Game Land 

Currituck County— North River Game Land 

Currituck County— Northwest River Marsh 
Game Land 

Dare County--Dare Game Land (No hunt- 
ing on posted parts of bombing range.) 

Davidson, Davie, Montgomery, Rowan and 
Stanly Counties--Alcoa Game Land 

Davidson County-- Linwood Game Land 

Davidson, Montgomery and Randolph 
Counties--Lwharrie Game Land 

Duplin and Pender Counties--Angola Bay 
Game Land 

Durham, GranviUe and Wake Counties- - 
Butner- Falls of Neuse Game Land (On 
portionr i ef \kt» Butner Falls ef Nuuno 
Gamo 1 and dcjignatod aft4 po; i t e d as 
"safety r.onoo" a«4 ©» that part marked 



as the Penny Bend Rabbit Research Area 
no hunting is permitted. Qvt portions 
posted as "rootrictod gonoo" hunting i* 

1 1 1 LI I. \JK1 cTT \J\^r ~~ CTT^^T HI I TTTT UUl Uir^ 11 i\J W^T^^ 

aft4 arrow s e ason aft4 the regular g«ft 
season fof deer. Horseback riding, in- 
cluding all equine species, is prohibited.) 
Franklin County- -Franklin Game Lands 
Gates County— Chowan Swamp Game 

Land 
Henderson, PoUc and Rutherford Counties- 

-Green River Game Lands 
Flyde County--Gull Rock Game Land 
Hyde County— Pungo River Game Land 
Hyde and Tyrrell Counties- New Lake 

Game Land 
Jones and Onslow Counties--Hofmann 

Forest Game Land 
Lx;e County--Lee Game Land 
McDowell County- Flickory Nut Mountain 

Game Land 
McDowell and Rutherford Counties-- 

Dysartsville Game Lands 
Moore County— Moore Game Land 
New Hanover County--Sutton Lake Game 

Land 
Person County- -Person Game Land 
Transylvania County— Toxaway Game Land 
T\rrcll Countv--I.antem Acres Game Land 
Vance County--V'ance Game Land. ( Ihe 
use of dogs, centerfire rifles and handguns 
for hunting deer is prohibited on the 
Nutbush Peninsula tract of Vance Game 
Lands.) 
Wilkes County--Thurmond Chatham Game 
Land 
(4) Deer of either sex may be taken on the 
hunt dates indicated by holders of permits 
to participate in managed hunts scheduled 
and conducted in accordance with this 
Subparagraph on the game lands or 
portions of game lands included in the 
foUowing schedule: 
I'riday and Saturday of the fust week after 
Thanksgiving Week: 
L'wharrie and .'Mcoa southeast of NC 49 
Third Saturday after Thanlcsgiving Day: 
Carson Woods 
Thurmond Chatham 
Thursday and Friday of the week before 
Thanksgiving Week: 
Sandhills east of US 1 
Sandhills west of US I 
Fourth Saturday after Thanksgiving Day: 
D^isarts' i ille m McDowell County 
Hickorynut Mountain i» Me I Lowell 

County 
Pisgah m Av e r> ' County 



7:1 NORTH CAROLINA REGISTER April I, 1992 



47 



PROPOSED RULES 



PiL . gah m Durlco County 
Pif . guh m CaldwL ' U County 
Pif . gah m McDo' i Voll County 
Piogah m Yancey County 
South Mountain ' : , 
Thunnond Chathcun 
Application forms for permits to participate 
in managed deer hunts on game lands, to- 
gether with pertinent information and in- 
structions, may be obtained from hunting 
and fishing hcense agents and from the 
Wildlife Resources Coirmiission. Com- 
pleted applications must be received by the 
Commission not later than the first day of 
October next preceding the dates of hunt. 
Permits are issued by random computer se- 
lection, are mailed to the permittees 30 days 
prior to the hunt, and are nontransferable. 
Each ponmit is accompanied lȴ aft appro 
priat e b+g gamij te^ /\. hunter making a kUl 
must tag the deer and report the kill to a 
wildlife cooperator agent. 
(5) The following game lands and Federal 
Wildlife Refuge are closed to all hunting 
except to those individuals who have ob- 
tained a \alid and current permit from the 
WUdhfe Resources Commission: Bertie, 
Halifax and Martin Counties- Roanoke 
River Wetlands: 
Bertie Countv-- Roanoke River National 

Wildlife Refuge. 
Cao' i VijU County Caowoll Garni? I and (TTiat 
portion doi i ignatod aft4 pootod as a 'Safety 
Zone") 
Dare County— Dare Game Lands (Those 
parts of bombing range posted against 
hunting) 
Davie-- Hunting Creek Swamp Waterfowl 

Refuge 
Gaston, Lincoln and .Mecklenburg 
Counties-Cowan's Ford Waterfowl Ref- 
uge (except for youth either-sex deer 
hunts by permit only on the first and sec- 
ond Saturdays in October). 

Statuton Authoritv G.S. 1/3-/34: //3-264: 
//3-29/.2: //3-:9/.5: //3-305. 

SLBCH.VPTER lOE - FISHING .VND BOATING 
.\CCESS ARE.\S 

.0004 LSE OF .ARE.\S REGLL.VTED 

(a) No person shall leave any vehicle, boat 
trailer or other obstruction on any access area in 
such a location, position or condition that it \\ ill 
pre\'ent, impede, or incon\'enience the use by 
other persons of any ramp or other facility con- 
structed tor the purpose of launching or landing 



boats. No person shall Iea\'e parked any vehicle, 
boat, boat trailer or other object at any place on 
any access area other than on such place or zone 
as is designated as an authorized parking zone 
and posted or marked as such. 

(b) No person shall possess a loaded firearm 
on any boat access area. No person shall operate 
a vehicle on any boat access area in a manner so 
as to endanger life or property. 

(c) No person, when using any access area, 
shall deposit any debris or refuse anv^vhere on 
the grounds of the area. No person, when using 
any access area, shall do any act which is pro- 
hibited or neglect to do any act which is required 
by signs or markings placed on such area under 
authority of this Regulation for the purpose of 
regulating the use of the area. At any time when 
aU designated parking zones on any access area 
are fuUy occupied, any person may enter and use 
such facilities, pro\ided such person makes other 
arrangements for parking and \iolates none of the 
provisions of this Regulation or the signs or 
markings made or posted pursuant hereto. 

(d) No p>erson shall operate a motorboat in the 
public waters of North Carolma within 50 yards 
of a Commission-owned or managed boat 
launching ramp at greater than "no wake" speed. 
For the purpose of this Regulation, "no wake" 
speed shall mean idling speed or a slow speed 
creating no appreciable wake. 

(e) Except where facilities are provided, it is 
unlawful to use any boating access area for pur- 
poses other than the launching of boats and 
parking \'ehicles and boat trailers. All other 
uses--including swimming, skiing, camping, 
building fires, of>erating concessions or other ac- 
tivities not directly involved with launching of 
boats— are expressly prohibited. 

(f) ^^ p <? rf . on chaU launch Bt- moor j^ 4as &f 

l*l3ui?.' CtV L'TJ L'llV' rr^TTTTTTi Ct^tTT?^ l! t Vtl'.T IL 1.5 LlILliJ.V\lLll 

to use any public fishina area for purposes other 
than fishing. All other uses including swimming, 
sunbathing on piers or docks, discharging 
firearms, launching or moonng jet skis or boats, 
skimg, buildmg fires, operating concessions, or 
other acti\itics not directly associated with Fishing 
are expressly prohibited. 

Statutory Authority G.S. //3-/34; // 3-264: 
75A-/4. 



ly otice is hereby given in accordance with G.S. 
/SOB- 2/. 2 that the Sorth Carohna Wildlife Re- 
sources Commission intends to amend nde(s) 



48 



:1 NORTH CAROLINA REGISTER April 1, 1992 



PROPOSED RULES 



cited as ISA NCAC 101 .0001; adopt rule(s) 
cited as ISA NCAC 101 .0006. 

1 he proposed effective date of this action is July 
J, 1992. 

1 he public hearing will be conducted on the fol- 
lowing dates, times and locations: 

April 22. 1992 
10:00 a.m. 

Archdale Bldg. 
SI 2 N. Salisbury Street 

Ground Floor 

Hearing Room 
Raleigh, North Carolina 

April 22, 1992 

7:00 p.m. 

Randolph County 

Courthouse 

Asheboro, North Carolina 

April 23, 1992 

7:00 p.m. 

Watauga County 

Courthouse 

Boone, North Carolina. 



TKeason for Proposed Action: 



Rule ISA NCAC 101 .0001 

habitat" and related lertns. 



To define "critical 



Rule 15A NCAC 101 .0006 - To list critical habitats. 

C^ omment Procedures: Interested persons may 
present their views either orally or in writing at the 
hearing. In addition, the record of hearing will 
be open for receipt of written comments from 
April 1,1992, to May I, 1992. Such written com- 
ments must be delivered or mailed to the N.C 
Wildlife Resources Commission, SI 2 N. Salisbury 
Street. Raleigh, NC 27604-1188. 

SLBCHAPTKR 101 - ENDANGERED AND 
THREATENED SPECIES 

.0001 DEFINITIONS 

For the purposes of this Subchapter, the fol- 
lowing defuiition shaU apply; 

(1) 'Species" means any taxonomic grouping 
of wildlife the adult members of which 
interbreed and reproduce their kind. 

(2) "Critical habitat" means any habitat which 
is considered essential for the continued 
sunival of an endanacred or threatened 



wildlife species as listed in Rules .0003 and 
.0004 of this Subchapter. 

(a) Critical habitats are recommended for 
Commission adoption by the Nongame 
Wildlife Advisory Committee based on 
sound biological evidence. 

(b) Critical habitats shall include those areas 
within the geographical area occupied bv 
the species, on which are found those 
physical or biological features which are 
essential to the conservation of the species 
and which may require special manage- 
ment considerations or protection; and 
shall also mclude specific areas outside the 
geographical area occupied bv the species 
that are determined to be essential for the 
conservation of the species and which 
may require special management consid- 
erations or protection. 

(c) Critical habitat shaU not include the entire 
geographical area which can be occupied 
bv the threatened or endangered species 
unless the management and protection of 
this area has been determined to be es- 
sential for the consen'ation of the species. 

Statutory Authority G.S. 113-132; 113-134; 
113-333: 143-239. 

.0006 CRITICAE HABITATS LISTED 

The following areas are listed by the Commis- 
sion as critical habitats for endangered and 
threatened species as Usted in Rules .0003 and 
.0004 of this Subchapter: 
( 1) New Ri\er and its tributaries from the 
Virginia state line up to the headwaters of 
Watauga County. 
Listed species: 



(a) Seep mudalia (Leptoxis dilatata) -_ threat- 
ened, 

(b) Pistolgrip ( Tritogonia verrucosa) - endan- 
gered. 

(2) Watauga River and its tributaries from the 
Tennessee state line to the headwaters in 
Avery and Watauga Co unties. 

Listed species 



Tennessee heelsplitter 



(Lasmicona holstonia) - endangered. 



(3) Little Tennessee River from I.ake L'mory 
at Lranklin in .Macon Countv to the Cieorgia 
state line. 

Listed species: Spotfm chub (Hvbopsis 
monacha) - threatened. 

(4) little I'ennessee River and its tributaries 
in .Macon and Swain counties from Lontana 
Reservoir to Lake Lmor\' at Franklin. 



Listed species: 

(a) Tennessee pigtoe (Fusconaia bamesiana) 
- endangered. 



7:1 NORTH CAROLINA REGISTER April I, 1992 



49 



PROPOSED RULES 



(b) Spotfine chub (Hvbopsis monacha) -_ 
threatened, 

(c) Little-wing pearly mussel ( Pegias fabula) - 
endangered, 

(d) Appalachian elktoe (Alasmidonta 
ra\enliana) -_ endangered, 

(e) SlippersheU mussel (Alasmidonta viridis) 
- endangered. 

(5) John's Ri\er and its tributaries from its 
confluence with the Catawba River in Burke 
County to the headwaters in Watausa, 



Ayep,', Caldwell, and Burke counties. 



Listed species: Brook floater (Alasmidonta 

varicosa) - threatened. 
(6) Warrior Fork and its tributaries from its 

confluence with the Catawba River in Burke 

County to the headwaters. 



varicosa) - threatened. 

(7) Linville River and its tributaries from its 
coniluence with Lake James in Burke 
County to the headwaters in Avery, 
McDowell, and Burke counties. 

Listed species: Brook floater (Alasmidonta 
\'aricosa) - threatened. 

(8) Waxhaw Creek and its tnbutaries from the 
South Carolina state hne to the headwaters 

Carolina heelsplitter 



in L nion County. 



Listed species: 

(Lasmigona decorata) - endangered. 
(9) Goose Creek and its tributaries from its 

River to the 
and Union 



confluence with the Rocky 
in 



headwaters 
counties. 



Mecklenburg 



Listed species: 

(a) Carolina heelsplitter (Lasmigona decorata) 
- endangered, 

(b) Squawfoot (Strophitus undulatus) - 
threatened. 

(10) Uwharrie Ri\ er and its tnbutaries from its 
contTuence with the Pee Dee Ri\er to the 
headwaters in Davidson, Randolph, and 
Montgomer\' counties. 

Listed species: 

(a) Atlantic pigtoe (Fusconaia masoni) - 
threatened. 

(b) Squa\\foot (Strophitus undulatus) ^ 
threatened. 

(11) Little River and its tributaries from its 
confluence with the Pee Dee River to the 
headwaters in Randolph. Montgomery, and 
Richmond counties. 

Listed species: 

(a) Atlantic pigtoe (Fusconaia masoni) - 
threatened. 

(b) Sa\annah lilliput (Toxolasma pullus) - 



(c) Squaw^oot (Strophitus undulatus) 
threatened, 

(d) Brook floater (Alasmidonta varicosa) 



threatened. 

(12) Bear Creek and its tributaries from its 
confluence with the Rockv River to the 
headwaters in Stanly and Cabarrus counties. 



Listed species: 

(a) Atlantic pigtoe (Fusconaia masoni) -_ 
threatened, 

(b) Squawfoot (Strophitus undulatus) ^ 
threatened, 



Listed species: Brook floater (Alasmidonta c^ 



(c) Brook floater (Alasmidonta varicosa) ^ 
threatened. 
( 13) Deep River and its tributaries from its 
confluence with the Haw River to the North 
Carolina Highway 42 bridge in Coleridge 
and all associated tnbutaries to their 
headwaters 



in Randolph. 
Chatham and Lee counties. 



.Moore and 



Listed species: 

(a) YeUow lampmussel (Lampsilis cariosa) -_ 
threatened, 

shiner 






Cape Fear 



(Notropis 



mekistocholas) - endangered. 

Squawfoot (Strophitus undulatus) - 
threatened. 
__ Rocky River and its tributaries in 
Chatham County from its confluence with 
the Deep River to the headwaters in 
Alamance and Randolph counties. 
Listed species: 

(a) Tnangle floater (Alasmidonta undulata) - 
threatened, 

shiner (Notropis 






Cape Fear 
mekistocholas 



endangered, 

Squawfoot (Strophitus undulatus) 
threatened: 

Brook floater (.Alasmidonta varicosa) 
threatened. 



( 15) Neals Creek and its tributaries from its 
confluence with the Cape Fear River to the 
headwaters in Harnett County. 

Listed species: Cape Fear shiner (Notropis 
mekistocholas) -_ endangered. 

(16) Cape Fear Ri\er in Cumberland and 
I lamett counties from the Fayette\'LUe 
wastewater treatment facilities to the Lee 
County Une. 



Listed species: "^"ellow lampmussel (Lampsflis 
cariosa) -_ threatened. 
(17) ()i1on Fond and Orton Creek to its 
head waters in Brunswick County. 
Listed 



species: 



.Magnificent rams-hom 



threatened. 



Planorbella magmfica) - endangered. 
18} Black Ri\er and its tributaries from its 
confluence with the Cape Lear Rner to the 
headwaters in Pender. Bladen. Duplin. 



50 



7:1 NORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



Sampson, Cumberland and Harnett coun- 
ties. 
Listed species: 

(a) Atlantic pigtoe (Fusconaia masoni) -_ 
threatened, 

(b) ^"ellow lampmussel ( \ ampsilis cariosa) - 
threatened. 

(19) Fork Creek and its tributaries from its 
confluence with the Deep River to the 
headwaters in Randolph County. 

Listed species: Cape Fear shiner (Notropis 
mekistocholas) - endangered. 

(20) Umversity Lake and its tributaries to the 
headwaters in Orange County. 



Listed species: Savannah lilliput (Toxolasma 
puUus) - threatened. 
(21) Cane Creek and its tributaries from its 
confluence with the Haw River in Alamance 
County to the Cane Creek Reservoir in Or- 
ange County. 
Listed species: Squawfoot (Strophitus 

undulatus) - threatened. 
Lake Waccamaw and Big Creek and its 
tributaries to the headwaters in Columbus 
and Bladen counties. 



Listed species: 

(a) Waccamaw silerside (Menidia extensa) 
threatened, 

fatmucket 






Waccamaw 

fuUcrkati) - threatened. 



(Lampsilis 



Savannah lilliput ( roxolasma pullus) - 
threatened, 

Waccamaw spike (Elliptio 
waccamawensis) - threatened. 



(23) Waccamaw Ri\ cr from the South Carohna 



state line to I^e Waccamaw 



Waccamaw Ri\er tributaries to 



and 
their 



headwaters in Columbus and Bladen Coun- 



ties^ 
Listed species: 
(a) Waccamaw 



(b) 



fullerkati) - threatened. 



fatmucket (Lampsilis 



Waccamaw spike (FUiptio 
waccamawensis) - threatened. 
(24) Little River and its tributaries from the 
little River Reservoir in Durham County 
to the headwaters in Orange County. 
Listed species: 

(a) \"eUow lampmussel (I^mpsiUs cariosa) - 
threatened, 



(bi 



Atlantic pigtoe (Fusconaia masoni) 
threatened, 

Strophitus 



Squawfoot 
threatened. 



undulatus) 



(25) Bno River and its tributaries from the 
Durham County line to the headwaters in 
Oranae County. 



(a) Yellow lampmussel (Fampsilis cariosa) -_ 
threatened, 

(b) Squawfoot (Strophitus undulatus) - 
threatened. 



26) Flat River and its tributaries from Lake 
Michie in Durham County to the 
headwaters in Durham and Person counties. 



Listed species: 

(a) Tnangle floater (Alasmidonta undulata) -_ 
threatened, 

(b) Yellow lampmussel (Lampsihs cariosa) - 
threatened, 

(c) Atlantic pigtoe (Fusconaia masoni) -_ 
threatened, 

(d) Green floater (Lasmigona subviridis) ^ 
endangered, 

(e) Squawfoot (Strophitus undulatus) - 
threatened. 

(27) Little River and its tributaries from the 
Johnston- Wayne county line to the 
headwaters in Johnston, Wake and Franklin 
counties. 



Listed species: 

(a) Triangle floater (Alasmidonta undulata) - 
threatened, 

(b) Yellow lampmussel (Lampsilis cariosa) - 
threatened, 

(c) Dwarf wedge mussel (Alasmidonta 
heterodon) - endangered, 

(d) Atlantic pigtoe (Fusconaia masoni) - 
threatened, 

(e) Green floater (lasmigona subviridis) - en- 
dangered, 

(0 Squawfoot (Strophitus undulatus) -_ 

threatened. 

(28) Swift Creek and its tributaries from its 

confluence with .Middle Creek in Johnston 

County to the Lake Benson dam in Wake 

County. 



Listed species: 

(a) Triangle floater (Alasmidonta undulata) ^ 
threatened, 

(b) Dwarf wedge mussel (.Vlasmidonta 
heterodon) - endangered, 

(c) Squawfoot (Strophitus undulatus) - 
threatened, 

(d) Green floater (Lasmigona subviridis) -_ 
endangered. 

(e) bellow lance (FUiptio lanceolata) - 
threatened, 

(f) Atlantic pigtoe (Fusconaia masom) -_ 
threatened. 

'29) Turkey Creek and its tributaries from 
Buckhom I .ake in Wilson County to the 
headwaters in Franklin County. 



Listed species: 



Listed species: 

(a) Triangle floater (.Vlasmidonta undulata) -_ 
threatened. 



7:1 NORTH CAROLINA REGISTER April I, 1992 



51 



PROPOSED RULES 



(b) Dwarf wedge mussel (Alasmidonta 
heterodon) -_ endangered, 

(c) Atlantic pigtoe ( 1 usconaia masoni) -_ 
threatened, 

(d) Squawfoot (Strophitus undulatus) -_ 
threatened. 

(30) Tar River and its tributaries from its con- 
fluence with Fishing Creek in Granville 
County to the headwaters in Gran\illc and 
Person counties. 



1 isted species: 

(a) Triande floater (Alasmidonta undulata) 
threatened, 






'bellow lampmussel (lampsilis cariosa) 
threatened. 

Dwarf wedge 



mussel (Alasmidonta 
\"ellow lance (1 lliptio lanceolata) - 



heterodon) - endangered, 



threatened, 

Atlantic pigtoe 
threatened, 



[Fusconaia masoni) 



Green tloater ( Lasmigona subviridis) -_ en- 
dangered, 

(g) Squawfoot (Strophitus undulatus) - 
threatened. 

(31) Tar River from the Rocky Mount Reser- 
voir in Nash County to its confluence with 
Fishing Creek in Granville County. 

1 isted species: 

(a) \'ellow lampmussel (I ampsilis cariosa) - 
threatened, 

(b) 'bellow lance (FUiptio lanceolata) -_ 
threatened, 

(c) Atlantic pigtoe (Fusconaia masoni) -_ 
threatened. 

(32) Swift Creek and its tributaries from its 
contluence with the Far Ri\er in 
Fdgecotnbc County to the headwaters in 
Fdgecombc, Nash, Franklin, Warren and 
Vance counties. 



Fisted species: 

(a) Triangle floater (Alasmidonta undulata) 
threatened, 



(bi 
l£l 
(iU 

Hi 
(33} 



"Vellow lampmussel (Fampsilis cariosa) - 
threatened. 

bellow lance (Flliptio lanceolata) - 
threatened, 

.Atlantic pigtoe (Fusconaia masoni) - 
threatened, 

Squawfoot (Strophitus undulatus) - 
threatened, 

I ar River spinv mussel (Flliptio 
steinstansana) - endangered. 
Crooked Creek and its tributaries from its 
the Far River to the 



influer 



with 



headwaters in Franklin County. 



isted 



species: 



Dwari' wedge mussel 



(34) Cedar Creek and its tributaries from its 
confluence with the Tar River to the 
headwaters in I'ranklin County. 
Fisted species: Dwarf wedge mussel 

(Alasmidonta heterodon) - endangered. 

Statutory Authority G.S. 113-132; 113-134; 
113-333; 143-239. 



No 



(Alasmidonta heterodon) - endangered. 



otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Commission for 
Health Services intends to adopt rules cited as 
ISA NCAC 18A .2537 - .2538; amend rules cited 
as 15A NCAC 18A .2509, .2513. .25/8, .2522 - 
.2524. .2526. .2528, .2530, .2532, .2535, .2607, 
.2610. .2624, .2710, .2822, .2824 -.2825, .2832, 
.3101; 18C .0403; and repeal rule cited as 15A 
NCAC ISA .2520. 

1 he proposed effective date of this action is July 
1. 1992. 

1 he public hearings will be conducted as follows: 

April 20, 1992 

7:30 p.m. 

Conference Center 

Charlotte-. Mecklenburg Government Center 

600 East 4th Street 

Charlotte, NC 

April 24, 1992 

1:30 p.m. 

1st Floor A uditorium 

Highway Building 

1 South Wilmington Street 

Raleigh, NC 

April 28, 1992 

7:30 p.m. 

County Commissioners' A uditorium 

Room 225 

Pitt County Office Building 

1717 West 5th Street 

Greenville, NC 

JXeasons for Proposed Actions: 

ISA NCAC 18A .2509 - This amendment clarifies 
that licensed landscape architects are qualified to 
submit swimming pool plans and verify that public 
swimming pools are constructed in accordance 
with approved plans. This amendment also clari- 



52 



7:1 NORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



fies licensing requirement for public swimming 
pool builders. 

ISA NCAC 18A .2513 - This amendment removes 
a reference to a rule which has been repealed (/5A 
NCAC 2H .0131). It also clarifies disposal 
options for various wastewater flows from a 
swimming pool. 

ISA NCAC 18A .2518 - This amendment eliminates 
conflicting standards from the same rule. The 
portion eliminated was unenforceable and unnec- 
essary. 

15A NCAC 18A .2520 - Repeal of this rule is to al- 
low various ion generation systems to be used for 
supplemental disinfection, algae control, and ph 
control of public swimming pool water. NSF 
listings do not exist for much of that equipment. 
NSF listing of Chlorine and bromine feeders is 
required in ISA NCAC ISA .2535 as is the pro- 
hibition on the use of gaseous chlorine. 
ISA NCAC 18A .2522 - This amendment will allow 
some special features to obstruct walkways. The 
rule currently prevents the construction of 
waterslides, wave pools and other pools which re- 
quire obstructions to free access around the pool. 
ISA NCAC 18A .2523 - This amendment makes the 
safety rope requirement applicable to existing 
pools. The change fixes the position of the rope 
based on the slope of the bottom instead of the 
depth of the pool. The contrasting color band 
across the bottom is a new provision. 
ISA NCAC ISA .2524 - This amendment is to allow 
the use of energy efficient lighting with light output 
comparable to the amount provided by incandes- 
cent lights at the previously required wattages. 
This establishes the adequate level of lighting for 
pool deck areas. 

ISA NCAC 18.\ .2526 - This amendment eliminates 
the requirement for rinse shower on pool deck and 
unnecessary requirement already covered by 
building codes for mixing vah-e location; and al- 
lows shatterproof instead of unbreakable mirrors. 
ISA NCAC 18A .2528 - This amendment clarifies 
the requirements to prevent entry of um\-ary chil- 
dren into the pool area. 

ISA NCAC 18A .2530 - This amendment requires 
additional lifesaving equipment for very large 
pools to make it better accessible; eliminates re- 
quirement for telephone in pool area because 
phones are generally provided where needed and 
operators oppose installation of phones when un- 
necessary; and clarifies the requirement for warn- 
ing sign to request adult supervision of children. 
ISA NCAC I8A .2532 - This amendment makes hot 
water warnings for spas applicable only to hot 
water spas. 

ISA NCAC 18A .2535 - This amendment eliminates 
a temporary provision which will not be in effect 
after May 1 , 1992. It also provides requirement 



for water quality test kits and daily testing of pool 
water quality. 

ISA NCAC 18A .2537 - This adoption makes key 
safety provisions of some design and comtruction 
standards applicable to pools existing prior to 
May 1 , 1991 and exempted from otherwise meet- 
ing the standards. Safety related operation and 
maintenance standards are included for all public 
swimming pools. 

ISA NCAC ISA .2538 - This adoption eliminates 
the use of wading pools which do not provide for 
recirculation and filtration of pool water. Water 
quality is a concern at these pools. 
ISA NCAC ISA .2607 - This amendment deletes 
references to the Building Code. There is pres- 
ently a fine for enforcing the Building Code when 
one is not a building inspector. 
15A NCAC ISA .2610 - This amendment requires 
foodservice establishments to provide clean plates, 
bowls, dessert dishes, etc.. for customers who are 
returning to self-service salad bars, hot bars, etc. 
ISA NCAC ISA .2624 - This amendment deletes 
references to the Building Code. There is pres- 
ently a fine for enforcing the Building Code when 
one is not a building impector. 
ISA NCAC ISA .2710 - This amendment alters 
these rules to conform with recent changes in the 
lighting requirements for restaurants. 
ISA NCAC 18A .2822, .2824, .2825, .2832 - This 
amendment allows the Lead Rules (ISA NCAC 
ISA .3100) to take precedence. 
ISA NCAC ISA .3101 - This amendment clarifies 
the definition of elevated blood lead level. This 
definition is used to determine when the Depart- 
ment must conduct an environmental investigation. 
ISA NCAC ISC .0403 - This amendment modifies 
the rule so that vegetation clearing two feet verti- 
cally above the normal full level is no longer re- 
quired at Class I and II reservoir sites. The 
requirement to clear vegetation is five feet verti- 
cally below the normal full level of the 
impoundment remains, as well as the requirement 
to own or control a margin of at least SO feet 
horizontally around the impoundment . 

i^ omment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barklev, Department of Justice, P.O. Box 629, 
Raleigh, NC 27602-0629, (919) 733-4618. If 
you desire to speak at the public hearing, notify 
John P. Barkley at least 3 days prior to the public 
hearing. Oral presentation lengths may be limited 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
ha\-e made comments at a public hearing or who 
have submitted written comments will be allowed 



7:1 NORTH CAROLINA REGISTER April I, 1992 



53 



PROPOSED RULES 



to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL INTER- 
ESTED AND POTENTIALLY AFFECTED PER- 
SONS, GROUPS, BLSINESSES, ASSOCIA- 
TIONS, INSTITUTIONS, OR AGENCIES MAKE 
THEIR VIEWS AND OPINIONS KNOVV^ TO 
THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND COM- 
MENT PROCESS, WHETHER THEY SUPPORT 
OR OPPOSE ANY OR AUL PROVISIONS OF 
THE PROPOSED RULES. THE COMMISSION 
MAY MAKE CHANGES TO THE RULES AT THE 
COMMISSION MEETING IF THE CHANGES 
COMPLY WITH G^. 1508-21.2(0- 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .2500 - PUBLIC SWIMMING POOUS 

.2509 PUAN REVIEW AND APPROVAL 

(a) For public swimming pools which are 
constructed or remodeled on or after May 1, 
1991, plans and specifications shall be prepared 
by a registered professional engineer, €* registered 
architect, or registered landscape architect, and 
shall be approved by the Department prior to 
construction. PubUc swimming pools con- 
structed after May 1, 1992, shall be constructed 
by swimming pool contractors licensed by the 
North Carolina Contractors Licensing Board for 
General ('ontractors. Post OITice Box 17187, 
Raleigh. North Carolina 27619. The General 
Contractor's license shall include the Swimming 
Pool Classification. 



(b) A minimum of two complete sets of plans 
shall be submitted to the Health Department for 
re\iew. Plans shall be drawn to scale and ac- 
companied by specifications so as to permit a 
clear, comprehensive review by the local health 
department. All prints of drawings shall be a 
minimum of 18 x 24 inches and a maximum size 
of 36 X 42 inches. These plans shaU include: 

(1) Plan and sectional view dimensions of 
both the pool and the area enclosed by the 
barrier fences to include the bathhouse 
and the equipment room and pool acces- 
sories; 

(2) Specifications of all treatment equipment 
used and their layout in the equipment 
room; 

(3) A piping schematic showing piping, pipe 
size, inlets, main drains, skimmers, gutter 
outlets, vacuum fittings and all other 



appurtenances connected to the pool- 
piping system; 

(4) Layout of the chemical storage room; 

(5) Specifications for the water supply and 
wastewater disposal systems would in- 
clude aspects such as well location and 
backwash water disposal where applica- 
ble. 

Any additional data requested by the local health 
department after the initial appUcation shall be 
submitted in order to clarify any related phase of 
the project. 

(c) The Department shall approve, disapprove, 
or provide written comments on plans and spec- 
ifications for public swimming pools within 30 
days of their receipt. If such action is not taken 
within 30 days, the plans and specifications shall 
be deemed approved. 

(d) If construction is not initiated within one 
year from the date of approval, the approval shall 
be voided. 

(e) Prior to issuance of the operation permit, 
the owner shall submit to the local health de- 
partment a statement signed by a registered ar- 
chitect, registered landscape architect, or a 
registered professional engineer stating that con- 
struction is complete and in accordance with ap- 
proved plans and specifications and approved 
modifications. Periodic observations of con- 
struction and a final inspection for design com- 
pliance by the certifying registered architect, or 
registered professional engineer or his represen- 
tative shall be required for this statement. 

(f) Upon completion of construction, the con- 
tractor shall notify the local health department 
and the owner. The contractor shall pro\ide the 
owner with a complete set of drawings, which 
show as built, the location of all pipes and the 
connections of all equipment and written oper- 
ating instructions for all equipment. 

Statutory Authority G.S. 1 30. 4- 282. 

.2513 SEWAGE SYSTEMS .\ND OTHER 
W.ASTEWATER DISPOSAL 

(a) Sewage shall be disposed of in a public 
sewer system or, in the absence of a pubhc sewer 
system, by an approved, properly operating san- 
itary sewage system. 

(b) There shall be no direct physical connection 
between the sewer system and any drain from the 
swimming pool or circulation system. /Vny 
swimming pool, deck drain or overflow from the 
circulation system, when discharged to the sewer 
system, storm drain or other approved natural 
drainage course, shall be discharged tlirough a 
suitable air gap so as to preclude the possibility 
of back flow of sewage or other waste water into 



54 



7:1 NORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



the swimming pool or the swimming pool piping 
system. Dock drain aft4 C i orfloss' aft4 backvs'a«h 
wator diochargod te the teft4 surfac e ef 
drainage * V i ayo must comply with Environmental 
Munagomont Commiosion Rule 44A NCAC -M- 
.01 J I. t^ purposes ©f this Rule, wat e r from 
outf . ide rins e showers shali He* be consid e red 
sewage. 

Statutory) Authority G.S. I30A-282. 

.2518 CIRCLLATION SYSTEM 

(a) Pools shall be equipped with a circulation 
system. 

(b) The capacity of the circulation system shall 
be sufficient to clarify and disinfect the entire 
volume of swimming pool water four times in 24 
hours. The system shall be operated 24 hours 
per day during the operating season. 

(c) The piping of the circulation system shall 
be designed and installed so that the main drains, 
and the lines from the perimeter overflow system 
or the automatic surface skimmers shall be con- 
nected to the suction line of the circulation 
pump. 

(d) The circulation piping shall be designed and 
installed with the necessary valves and pipes so 
that the flow from the swimming pool can be 
from main drains or the surface overflow system. 
The circulation piping shall be designed such the 
flow of water from the swimming pool can be 
simultaneous from the surface overflow system 
and the main drains. Skimmer piping shall be 
sized to handle the ma.ximum flow rate for the 
required number of skimmers, but in no case less 
than 50 percent of the design flow rate. Perime- 
ter overflow system piping shall be sized to han- 
dle 50 percent of the design flow rate. The main 
drain piping shaU be sized to handle 50 percent 
of the design flow rate. 

(e) Piping shall be designed to reduce friction 
losses to a minimum and to carry the required 
quantity of water at a maximum velocity not to 
exceed six feet (1.83 m) per second for suction 
piping and not to exceed 10 feet (2.44 m) per 
second for discharge piping e.xcept for copper 
pipe where the velocity shall not exceed eight feet 
per second. Piping shall be of non-toxic mate- 
rial, resistant to corrosion, and able to withstand 
operating pressures. If plastic pipe is used, a 
minimum of Schedule 40 PVC shall be required. 
Exposed pipes and \alves shall be identified by a 
color code or labels. 

(f) The circulation system shall include a 
strainer to pre\ent hair, lint, and other debris 
from reaching the pump. A spare basket shall 
be provided. Strainers shall be corrosion- 
resistant with openings not more than % inch 



(6.4 mm) in size which shall provide a free flow 
area at least four times the cross-section area of 
pump suction line and shall be accessible for 
daily cleaning. 

(g) A vacuum cleaning system shaU be pro- 
vided to remove debris and foreign material 
which settles to the bottom of the swimming 
pool. Pools with more than two skimmers shall 
be provided with a vacuum cleaning system 
which is an integral part of the circulation sys- 
tem. Connections shall be located at inter\'als 
sufficient to reach the entire pool with a 50 foot 
hose. Skimmer vacuums may be used in pools 
with two or fewer skimmers provided the 
skimmer basket remains in place while the vac- 
uum is in operation. The vacuum cleaning sys- 
tem shall be provided with valves and protective 
caps. 

(h) A rate-of-flow indicator, reading in hters 
or gallons per minute, shall be instaUed on the 
filtered water hne and located so that the rate of 
circulation is indicated. TTie indicator shall be 
capable of measuring flows which are at least 1 Vi 
times the design flow rate, shall be accurate 
within 10 per cent of true flow, and shall be easy 
to read. The indicator shall be installed in ac- 
cordance with manufacturers' sf>ecifications. 

(i) A pump or pumps shaU be provided with 
adequate capacity to recirculate the swunming 
pool water four times in 24 hours, and shall be 
so located as to eliminate the need for priming. 
If the pump or pumps, or suction piping is lo- 
cated above the overflow level of the pool, the 
pump or pumps shall be self-priming. The 
pump or pumps shall be capable of providing a 
flow adequate for the backwashing of filters. 
Unless headloss calculations are provided by the 
designing engineer, pump design shall be based 
on an assumed total dynamic head of 65 feet of 
water. Pumps three horsepower or smaUer shall 
be National Sanitation Foundation (NSF) hsted. 
Larger pumps for which NSF listing is not 
available shall be approved on a case-by-case 
basis. 

(i) Inlets. 

(1) Inlets shall be provided and arranged to 
produce a uniform circulation of water 
and maintain a unifonn disinfectant resi- 
dual throughout the pool. 

(2) The number of inlets for any swimming 
pool with a surface area of 2,000 square 
feet ( 186 sq m), or less, will be detcnnined 
based on return water flow. Flow rates 
(in gallons per minute) througli various 
sized inlet branches shall not exceed those 
listed in Table 2 of this Rule. There shall 
be a minimum of four inlets for any 
swimming pool. For any pool with a 



7:1 NORTH CAROLINA REGISTER April I, 1992 



:>:> 



PROPOSED RULES 



surface area greater than 2,000 square feet 
(186 sq m), the number of inlets shall be 
based on one inlet per 1 5 feet of perimeter 
or portion thereof. 

Table 2 



ide Pipe Diameter 


GPM 


1 inch 


10 


1 Vi inches 


20 


1 Vi inches 


30 


2 inches 


50 



(3) WTien wall inlets are used, they shall be 
equally spaced around the perimeter. 
WTien floor inlets are used, they shall be 
spaced throughout the pool to accomplish 
a uniform recirculation. 

(4) Provision shall be made to permit adjust- 
ment of the flow through each inlet, either 
with an adjustable orifice or provided with 
replaceable orifices to permit adjustments 
of the flows. 

(k) Drains. 

(1) Swimming pools shall be provided with 
at least two main drain outlets which shall 
be located at the deepest section of the 
pool and connected by "T" piping. 
Connecting piping shall be of the same 
diameter as the main drain pif>e. The 
drains shall be capable of permitting the 
pool to be emptied completely. Drains 
shall be spaced not more than 30 feet (9. 1 
m) apart, and not more than 15 feet (4.6 
m) away from the side walls. 

(2) Other systems which require suction out- 
lets shall be pro\ ided with two drains with 
"T" connection pipe. This provision does 
not apply to capped vacuum outlets. 

(3) Outlet drain gratings shaU have a total area 
of at least four times the area of the dis- 
charge pipe and shall be designed so as 
not to be readily removed by or create any 
hazard to bathers. 

(4) The outlet grate open area shall be such 
that when ma.ximum flow of water is be- 
ing pumped through the floor outlet, the 
velocity through the open grate shall not 
be greater than one and one-half feet per 
second. Outlet grates shall be anchored 
and openings in grates shall be slotted and 
the maximum dimension of slots shall not 
be more than one-half inch. Where outlet 
fittings consist of parallel plates, of the 
anti-vortex type where the water enters 
the fittings from the sides, rather than 
through a grating facing upward, entrance 



velocities may be increased to six feet per 
second. 
(1) Surface Overflow Systems. 

(1) Swimming pools shall be provided with a 
surface overflow system which shall be an 
integral part of the circulation system and 
which shall consist of a built-in-place 
perimeter overflow system, a pre- 
fabricated perimeter overflow system, or 
recessed automatic surface skimmers. 

(2) Whenever a built-in-place perimeter over- 
flow system or a pre-fabricated perimeter 
overflow system is provided, it shall be 
designed and instaUed as foUows: 

(A) The system shall be capable of handling 
50 percent of the circulation flow without 
the overflow troughs being flooded for 
any appreciable period of time; 

(B) A surge capacity shall be provided ei- 
ther in the system or by use of a surge 
tank; and the total surge capacity shall be 
at least equal to one gallon per square foot 
(41 L per square meter) of swimming pool 
water surface area; 

(C| The water level of the swimming pool 
shall be maintained at, or slightly higher 
than, the level of the overflow rim of the 
perimeter overflows, except for the time 
needed to transfer all of the water which 
may be in the surge capacity back into the 
swimming pool after a period of use; pro- 
vided that this transfer time shall not be 
greater than 20 minutes; 

(D) When installed the tolerance of the 
overflow rim shall not exceed Va inch (6.4 
mm) as measured between the highest 
point and the lowest point of the overflow 
rim; 

(E) During quiescence, the overflow system 
shall be capable of providing continuously 
and automatically a skimming action to 
the water at the surface of the swimming 
pool; 

(F) The overflow troughs shall be installed 
completely around the perimeter of the 
swimming pool, except at steps, recessed 
ladders and stairs; 

(G) The exposed surfaces of the overflow 
trough shall be capable of pro\ iding a firm 
and safe hand-hold; and 

(H) The overflow trough shaU be cleanable 
and shall be of such configuration as to 
minimize accidental injur\ . 

(3) Whenever a recessed automatic surface 
skinamer or skimmers are installed, they 
shall be designed and constructed in ac- 
cordance with Section S of the National 
Sanitation Foundations Standard Num- 



56 



7:1 NORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



ber 50 for circulation system components 
for swimming pools, spas, or hot tubs, 
which is hereby adopted by reference in 
accordance with G.S. 150B- 14(c) or 
equivalent, pertaining to recessed auto- 
matic surface skimmers and they shall be 
installed as follows: 

(A) The flow-through rate through any one 
recessed automatic surface skimmer shall 
be between 20 and 30 gallons per minute. 
aft4 Het- le^ tbaft fo«f gallons pef minuto 

contimotor) »f okimming w«»if when tt»« 
okiiTuncr oyotom i* oporatod under ite 
nonnal operating mod e ; I'iping shall be 
sized to allow a flow of 30 gallons per 
minute for each skimmer; 

(B) There shall be at least one recessed au- 
tomatic surface skimmer for each 400 
square feet (46 sq. m) of water surface area 
of the swimming pool or fraction thereof; 

(C) WTien two or more recessed automatic 
surface skimmers are required, they shall 
be so located as to minimize interference 
with each other and as to insure proper 
and complete skimming of the entire 
swimming pools water surface; and 

(D) Skimmers shall not protrude into the 
swimming pool. Automatic surface 
skimmer or skimmers without a perimeter 
overflow system, shall be installed so that 
the operating level of the pool is no more 
than nine inches below the fmished deck 
level so that the deck can be used as a 
handhold. 

(m) Where flooded suction on the pump is not 
possible to prevent cavitation and loss of prime, 
skimmers shall have a device or other protection 
to prevent air entrainment in the suction line. 
The inlet to the equaUzer line shall be provided 
with a grate. 

(n) Nothing in this Section shall preclude the 
use of a roll-out or deck-level type of swimming 
pool. Such designs shall conform to the general 
provisions relating to surface overflow systems. 
The design of the curb and handhold shall be 
approved by the Department based on detailed 
review of this feature of construction and evalu- 
ated in the light of proposed use of the s\\ imming 
pool. 

(o) Nothing in this Section shall preclude the 
use of a surface overflow system which combines 
both a perimeter overflow system and a recessed 
automatic surface skimmer or skimmers. 

Statutory Authority G.S. I30A-282. 

.2520 CHEMICAL FEEDERS 



Chomioal feodoro as may be required te main 
tatft the microbiological, ohomiod, aftd phyrioial 
oharactt ' ristic ' j »f tl» flwimming pool water 
within pref i cribod limits shall be NSF li i jtod. -fh^ 
H6e »f chlorin e gas fof disinfection ef public 
s' . ' i iiTLming pools is prohibit e d. 

Statutory Authority G.S. J30A-282. 

.2522 DECKS 

(a) Outdoor swimming pools shall have a 
continuous deck extending completely around 
the swimming pool. The width of the deck or 
walkway shall provide at least six feet of clear 
walking space at all points. If the swimming area 
of the pool is 1 600 square feet or larger, at least 
eight feet of clear walking space is required. 

(b) Indoor swimming pools shall have a con- 
tinuous deck or walkway extending completely 
around the swimming pool. The width of the 
deck shaU provide at least five feet of clear walk- 
ing space at all points. 

(c) Wading pools shall have a continuous deck 
extending completely around the wading pool. 
The width of the deck or walkway shall provide 
at least four feet of clear walking space at all 
points. 

(d) Spas shall have a continuous deck extend- 
ing at least one-half way around the spa. The 
width of the deck or walkway shall provide at 
least four feet of clear walking space at all points. 

(e) Whenever a diving board or shde is installed 
on a swimming pool, there shall be at least five 
feet (1.52 m) of unobstructed deck behind the 
diving board or shde. 

(f) Ail deck areas and walkways shall be sloped 
at a grade of '/i inch to Vi inch per foot to a deck 
drain or sheet drain to deck edge. Deck drains 
shall not be connected to the circulation system 
in any manner. 

(g) /Ml decks and walkways shall have a slip- 
resistant, impervious surface; except that non- 
porous resihent artificial recreational surfaces 
may be used if approved by the Department. 

(h) Sufficient hose bibs shall be provided to 
allow aU areas of the deck to be reached with a 
100 foot hose. 

(i) Special purpose pools such as waterslides 
and wa\e pools may \ar\ from the minimum 
deck area requirements to the extent necessar\' to 
accommodate the special features of the pool. 

Statutoiy Authority G.S. I30A-282. 

.2523 DEPTH MARKINGS AND SAFETY 
ROPES 

(a) On swimming pools, the depth of the water 
shall be marked plainly, at or above, the water 



7:1 NORTH CAROLINA REGISTER April I, 1992 



57 



PROPOSED RULES 



(2) 



(3) 



(4) 
(b) 



surface on the vertical wall of the swimming pool 
where possible, and on the edge of the deck next 
to the swimming pool. Where depth markers 
cannot be placed on the vertical walls at or above 
the water level, other means shall be used; pro- 
vided said markings shall be plainly visible to 
persons in the swimming pool. Depth markers 
shall be placed at the following locations: 

(1) at the points of ma>axnum and minimum 
depths; 

at the transition point where the slope of 
the bottom changes from the uniform 
slope of the shallow area; 
if the pool is designed for diving, at ap- 
propriate points as to denote the water 
depths in the diving area; and 
at both ends of the pool. 
Depth markers shall be so spaced that the 
distance between adjacent markers is not greater 
than 25 feet (7.5 m) when measured peripherally. 

(c) Depth markers shall be in arabic numerals 
at least four inches (10 cm) high and of a color 
contrasting with the background. 

(d) A minimum of ^.u inch diameter safety rope 
shall be provided at the point ' . ' ■ 'horo vvater depth 
oxcoodo five feetr breakpoint where the slope of 
the bottom exceeds 1 to Jj] \ertical rise to hon- 
zontal distance. The position of the rope shall 
be marked with colored floats at not greater than 
a five-foot spacing and a 2 inch wide contrasting 
color band across the pool bottom. 

feH "NO DIVING" marlcLTS ^b»ti be provided 

KJ 1 I vs.i\J I '\.'\_H. ^I^^^T LIU. jut VI It. \.\J hi l^7J.J \Jl LI l\. yJKJ\J I 

le^ than five feet- deep. Markerr . muot be plac e d 
within *we feet- »f the edge ef the coping. aft4 se- 
opaced tfeat the distanc e between adjacent mark 

L. 1 w.' r^ rTTTv rTTTTTT^ 1 1 ILU L 1 ' H- l^ I \ ' . ^' III/ TTTTCTT 1 1 i\,^JtJ 

ured peripherally. Markers shall be ef at- loaot 
t' . ' i o inch letter si^ie aft4 &i a contrasting color. 

Statutory Authority G.S. 130A-2S2. 

.2524 LIGHTING, VENTII ,\TION, .AND 
ELECTRICAL REQL IREMENTS 

(a) Electrical components of public swimming 
pools shall meet the requirements of the latest 
National Electrical Code (NEC) R, as published 
by the National Fire Protection Association, 
which are adopted hereby incorporated by refer- 
ence including any subsequent amendments and 
editions. Copies may be obtamed from the 
North Carolina Department of Insurance, Engi- 
neenng Di\ision. Post OtTice Box 26387. 
Raleigh. North Carolina 2761 1 at a cost of thirty 
doUtU-s (S30.00). m accordanc e wrtl* Gtt^ 
150B 11(c). 

(b) rVrtificial lighting shall be provided at all 
indoor and outdoor pools which are to be used 



at night, or when natural hghting is insufficient 
to provide clear visibiUty in the pool area. 

(c) Lighting fixtures shall be of such number 
and design as to illuminate all parts of the pool, 
the water, the depth markers, and the entire deck 
area. 

(d) Fixtures shall be installed so as not to create 
hazards such as burning, electrical shock, me- 
chanical injury, or temporary blinding by glare 
to the bathers, and so that lifeguards, when pro- 
vided, can clearly see every part of the pool area 
without being blinded by glare. The illumination 
shall be sufficient so that the floor of the pool can 
be seen at all times the pool is in use. 

(e) If underwater hghting is used, the illumi- 
nation of the water surface wlU be deemed suffi- 
cient if the underwater hghts provide at least 0.5 
watts or 8.35 lumens per square foot of water 
surface. 

(f) Where underwater lighting is employed, area 
hghting shall be provided fo* the deck afea pro- 
vide at least 0.6 watts or J_0 lumens per square 
foot of deck area. Wfiere underwater hghting is 
not employed, and night swimming is permitted, 
area and pool lighting combined shall be pro- 
\ided in an amount of not less than two watts 
or 33.5 lumens per square foot of pool area. 

(g) Mechanical ventilation shall be required for 
all indoor pools. 

Statutory^ Authority G.S. J30A-2S2. 

.2526 DRESSING .\ND S.ANITARY FACILITIES 

(a) Dressing and sanitary facilities shall be 
provided at all pools, except for pools at hotels, 
motels, condominiums, and apartments where 
pool use is restricted to residents or guests. At 
condominiums and apartments where the farthest 
unit is more than 300 feet from the pool, toilets 
shall be provided. Prins e sho' i vero shall be pfe- 
vided ' I ' l horo indoor showers afe aet- required bv- 
thj* Soction. 

(b) Partitions shall be of durable material, not 
subject to damage by water and shall be designed 
so that a waterway is provided between partitions 
and floor to permit thorough cleaning of the 
walls and floor areas with hoses and brooms. 

(c) Floors of the dressmg facility shall be con- 
tmuous throughout the areas. Floors shall have 
a slip-resistant surface that shall be relatively 
smooth, to insure complete cleaning. Floor 
drains shall be pro\ided, and floors shall be 
sloped not less than ' i inch per foot toward the 
drains to insure positive drainage. 

(d) Three-fourths inch hose bibs shaU be pro- 
\ided such that all parts of the dressing facility 
interior can be reached with a 50 foot hose. 



5S 



7:1 NORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



(e) The minimum criteria for dressing and 
sanitary facilities shall be based upon the maxi- 
mum bather load. 

(f) One water closet, one lavator>', and one 
urinal shall be provided for the first 100 male 
users. One additional water closet, lavatory, and 
urinal shall be provided for each additional 200 
male users or major fraction thereof Where the 
maximum bather load includes less than 50 male 
users, one water closet and one lavatory will be 
sufficient. 

(g) Two water closets and two lavatories shall 
be provided for the frrst 100 female users. One 
additional water closet and lavatory shall be pro- 
vided for each additional 100 female users or 
major fraction thereof. Where the maximum 
bather load includes less than 50 female users, 
one water closet and one lavatory will be suffi- 
cient. 

(h) Showers shall be provided in the proportion 
of one for each 50 persons at the time of maxi- 
mum bather load. 

(i) The water heater a»4 thormootatically 
oontroUc'd mixing valves, whore uot>d, shall be 
inaccessible to users. The system shall be de- 
signed such that water temperature at the shower 
heads and lavatories cannot exceed 110 degrees 
Fahrenheit. 

(j) Soap dispensers for providing either liquid 
or powdered soap shall be provided at each 
lavatory or inside shower. The dispenser shall 
be of all metal or plastic type, with no glass per- 
mitted in these units. 

(k) If mirrors are provided, they shall be of 
unbroolcablo shatterproof materials. 

(1) Toilet paper holders shall be provided at 
each water closet combination. 

Statutory Authority G.S. /30A-2S2. 

.2528 FENCES 

Swimming pools which af© looatod outdooro 
shall be protected by a fence, wall, building, or 
other enclosure, or any combination thereof, 
which completely encloses the swimming pool 
area such that all of the following conditions are 
met: 

(1) Constructed so as to afford no external 
handholds or footholds. However, the use 
of chain link fences with a mesh size of 2 'A 
inches or less is permitted; 

(2) A four foot (1.22 m) minimum height (from 
the insido aa*4 outside approach) is provided 
entirely around the swimming pool; 

(3) The horizontal space between vertical 
members of the enclosure shall not exceed 
four inches; there shall be at least 30 inches 
between any horizontal bottom rails or 



stringers and the next horizontal rails or 
stringers; 

(4) The height of any opening under the bot- 
tom of the enclosure shall not exceed four 
inches (10 cm); 

(5) Openings under and through a fringe or 
barrier with the gate(s) closed shall be sized 
so that a 4'/2 inch diameter sphere cannot 
be passed through the openings; 

(6) All gates and doors shall be equipped with 
self-closing and positive self-latching closure 
mechanisms which shall be located at a 
height at least three feet, and shall be 
equipped with locking devices. Gates pro- 
vided to allow bathers access to the pool 
shall be located so as to open into the pool 
at a point where the water is less than five 
feet deep; aH4 

(7) Gates provided specifically for access to 
equipment rooms shall be locked at all times 
when not in use by the pool operator; 

(8) Ground level doors and windows opening 
inside the pool enclosure must be self- 
closing or child protected; and 

(9) Self-closing, self-latching gates shall not be 
required for senice gates which are kept 
locked, or for entrances where access is 
controlled bv a gate attendant and a 
lifeguard is on duty in the pool area. 

Statutory Authority G.S. I30A-282. 

.2530 SAFETY PROVISIONS 

(a) Swimming pools shall have lifesaving 
equipment conspicuously and conveniently on 
hand at all times. tt»^ conforms with the f»l- 
lowing: A unit of lifesaving equipment shall in- 
clude the foUowing: 

(1) A light, strong pole not less than 12 feet 
long, including a body hook. 

(2) A minimum % inch diameter throwing 
rope as long as one and one-half times the 
ma.ximum width of the pool or 50 feet, 
whichever is less, to which has been firmly 
attached a U.S. Coast Guard approved 
ring buoy. 

(^ A tolophon e with pootod namoG afi4 tele- 
phono numboro »f the nsareot available 
polioo, fif»7 ambulanc e Gon . ico, rof i ouo ©f 
»14Ttf available. 

(b) Two units of lifesaving equipment must be 
provided for any pool which exceeds 2.000 
square feel (186 s^ m) of total surface area. 

(c) <^ When a public swimming pool does not 
have at least one lifeguard on duty, a sign shall 
be posted which has clearly legible letters of at 
least four inches (10 cm) in height stating: 
"WARNING-NO LIFEGUARD ON DUTY." In 



7:1 NORTH CAROLINA REGISTER April I, 1992 



59 



PROPOSED RULES 



addition there shall be signs stating: "CHIL- 
DREN SHOULD NOT USE THE SWIMMING 
POOL WITHOUT T'V^ ADULT trV ATTEND 
ANCE, SUPERVISION", and: "ADULTS 

SHOULD NOT SWIM ALONE". Such signs shall 
be mounted permanently. 

(d) fef A sign prohibiting pets and glass con- 
tamers in the pool area shall be provided. 

Statutory Authority G.S. I30A-282. , 

.2532 SPAS AND HOT TUBS 

Spas and hot tubs shall be designed by a regis- 
tered professional engineer or registered architect, 
and shall meet all design specifications for swim- 
ming pools and wading pools included in Rules 
.2512 - .2530 of this Section with the following 
exceptions: 

(1) The circulation system equipment shall 
pro\ide a turnover rate for the entire water 
capacity at least once every 30 minutes. 

(2) The arrangement of water inlets and out- 
lets shall produce a uniform circulation of 
water so as to maintain a uniform 
disinfectant residual throughout the spa. 

(3) A minimum of two inlets shall be provided 
with inlets added as necessary to maintam 
requured flowrate. 

(4) Water outlets shall be designed so that each 
pumping system in the spa (filter systems or 
booster systems if so equipped) provides the 
foUowmg: 

(a) Two bottom drains connected by "T" 
piping. Connectmg piping shall be of the 
same diameter as the main drain outlet. 
Such drains shall be capable of emptying 
the spa completely. Bottom drains shall 
be equipped with anti-vortex plates that 
cannot be removed except with tools. 

(b) Filtration systems shall provide at least 
one surface skimmer per 100 square feet, 
or fraction thereof of surface area. 

(5) Piping shall be large enough to permit the 
rated flow for filtering and cleaning without 
exceeding the total load developed by the 
pump at the rated flow. 

(6) The water velocity in spa or hot tub dis- 
charge piping shall not exceed ten feet per 
second (3.05 m second): except for copper 
pipe where water velocity shall not exceed 
eight feet per second (2.44 m/second). 
Suction water velocity in any piping shall 
not exceed six feet per second (1.83 
m/second). 

(7) Spa recirculation systems shall be separate 
from companion swimming pools. 

(a) Where a two-pump system is used, one 
pump shall provide the required tumo\-er 



rate, filtration and disinfection for the spa 
water. The other pump shall provide 
water or air for hydrotherapy turbulence 
without interfering with the operation of 
the recirculation system. The timer 
switch will activate only the hydrotherapy 
pump. 

(b) Where a single two-speed pump is used, 
the pump shall be designed and installed 
to provide the required turnover rate for 
filtration and disinfection of the spa water 
at all times without exceeding the maxi- 
mum fdtration rates specified in Rule 
.2519 of this Section. The timer switch 
shall activate only the hydrotherapy por- 
tion of the pump. 

(c) Where a single one-speed pump is used, a 
timer switch shall not be provided. 

(8) A timer switch shall be provided for the 
hydrotherapy turbulence system with a 
maximum of 15 minutes on the timer. The 
switch shall be placed such that bathers 
must leave the spa to reach the switch. 

(9) The maximum operational water depth 
shall be four feet (1.22 m) measured from 
the water line. 

(10) The maximum depth of any seat or sitting 
bench shall be two feet (61 cm) measured 
from the waterline. 

(11) A minimum height between the top of the 
spa hot tub rim and the ceiling shall be 7 'A 
feet. 

(12) Depth markers shall not be required at 
spas. 

(13) Steps, step-seats, ladders or recessed treads 
shall be provided where spa and hot tub 
depths are greater than 24 inches (61 cm). 

(14) Contrasting color bands or lines shall be 
used to indicate the leading edge of step 
treads, seats, and benches. 

(15) A spa or hot tub shall be equipped with 
at least one handrail (or ladder equivalent) 
for each 50 feet (15.2 m) of perimeter, or 
portion thereof to designate points of entry 
and exit. 

(16) WTiere water temperature exceeds 90 de- 
grees Fahrenheit (32" C), a caution sign shall 
be mounted adjacent to the entrance to the 
spa or hot tub. It shall contain the follow- 
ing warnings in letters at least Vi inch in 
height: 

(a) CAUTION: 

(b) -Pregnant women; elderly persons, and 
persons sutTering from heart disease, 
diabetes, or high or low blood pressure 
should not enter the spa hot tub without 
prior medical consultation and permission 
from their doctor; 



60 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



PROPOSED RULES 



(c) -Do not use the spa/hot tub while under 
the influence of alcohol, tranquilizers, or 
other drugs that cause drowsiness or that 
raise or lower blood pressure; 

(d) -Do not use alone; 

(e) -Unsupervised use by children is prohib- 
ited; 

(f) -Enter and exit slowly; 

(g) -Observe reasonable time limits (that is, 
10-15 minutes), then leave the water and 
cool down before returning for another 
brief stay; 

(h) -Long exposure may result in nausea, 

dizziness, or fainting; 
(i) -Keep aU breakable objects out of the area. 

(17) A sign shall be posted in the irmnediate 
vicinity of the spa or hot tub stating the lo- 
cation of the nearest telephone and indicat- 
ing that emergency telephone numbers are 
posted at that location. Those emergency 
telephone numbers shall include the name 
and telephone number of the nearest avail- 
able police, tire and, or rescue unit, physi- 
cian, ambulance service, and hospital. 

(18) A sign shall also be posted requiring a 
shower for each user prior to entering the 
spa or hot tub and prohibiting oUs, body 
lotion, and minerals in the water. 

Statutory Authority G.S. /30A-2S2. 

.2535 \V.\TER QL.\LI TY ST.VNDARDS 

Swimming pool water quality shall be main- 
tained in accordance with the following: 

(1) The chemical quality of the water shall be 
maintained in im4 an alkaline condition at 
all times with the pH between 7.2 and 7.8. 

(2) The clarity of the water shall be maintained 
such that the main drain grate is readily vis- 
ible from the pool deck at all times. 

(3) Dismfection shall be provided in accord- 
ance with manufacturers' instructions for all 
pools by a chemical or other process that 
meets the criteria listed as follows: 

(a) registered with the U.S. Environmental 
Protection Agency for pool water or 
potable water; 

(b) provides a residual effect in the pool water 
which can be measured by simple portable 
field test equipment: 

(c) will not impart any immediate or cumula- 
tive adverse physiological effects to pool 
bathers when used as directed; 

(d) will not produce any undue safety hazard 
when stored or used as directed; 

(e) will not damage or cause excessive wear 
of pool components or equipment; 



(fj will demonstrate reduction of total 
coliform and fecal coliibrm to a level at 
least equivalent to free chlorine at a level 
of one part per million in the same body 
of water. 

(4) When chlorine is used as the disinfectant, 
a free chlorine residual of at least one part 
per miUion (ppm) shall be maintained 
throughout the pool whenever it is open or 
in use. Pools which use chlorine as the 
disinfectant must be stabilized with cyanuric 
acid except at indoor pools or where it can 
be shown that cyanuric acid is not necessary 
to maintain a stable free chlorine residual. 

(5) \Vlien bromine or compounds of bromine 
are used as the disinfectant, a free bromine 
residual of at least two parts per million, 
shall be maintained throughout the pool 
whenever it is open or in use. 

(6) Automatic chemical feeders that are NSE 
listed shall be used when chlorine, bromine, 
or compounds of bromine are used as a 
disinfectant. Feeders shall be installed in 
accordance with NSF standard number 50 
which is adopted bv reference in accordance 
with G.S. 150B- 14(c). 

(7) When silver 'copper ion systems are used, 
the copper concentration in the pool water 
shall not exceed one part per milhon and a 
chlorme residual must be maintained in ac- 
cordance with Paragraph (4) of this Rule. 

(8) The use of chlorine in its elcmantral ele- 
mental (gaseous) form for disinfection of 
public swimming pools is prohibited. C-s- 
isting pubho C i vimming poo If . ' . ' ■ hich wuro 
U '. ing L - lomontal chlorine prior t& May -i-r 
1 ^9 1 ¥riH- h-d ullo' . ' i od te- continue tl** (*ee >rf 
L'lomontal chlorin e until .May 4-r 19'^2 with 
th« following pro' . i ' .ionc i : 

(a) Chlorino cylindoro aft4 chlorinating 
equipment shall be ift a separate ' . veil 
ventilated room Bf rooms. Such room 
&f rooms shall »»**• be below ground lev e l, 
afl4 shall be pro' i ided ' ■ vith vents Heaf the 
floor which terminate out of doors. ¥be 
door &( the room. »f rooms, shall »e* 
open directly te tbe s^vimming pool afea 
©f enclosure, aft4 shall open to tbe &«t- 

fbf Chlorino cylinders whether i» h^«» ©f m 
storage shall be anchored t& present them 

(e) A s«4f contained atF breathing apparatus 
suitable fof **s^ i» hioli concentrations ©f 
chlonne gas shall be provided. a«4 such 
apparatus shaU be stor e d m a sp e cial fe- 
cUitv located outside? the room &f rooms 



/.•/ NORTH CAROLINA REGISTER April 1, 1992 



61 



PROPOSED RULES 



» ' . shich ti» chlorinator and or tfee 
chlorin e Lylindorr af« locatoU %f through 
which conJuita carr r ing chlorirx? s*^ mm- 
paoL . : furthi. ' r ?uch L i torugg facility f i hall b# 
capabl e trf being r . L ' curod from th e ft »f 
sandaliom aftd f i halJ fe<e under ouponiLiion 
ef perf ' Onnol who have been e ' lpecially 
trained » Ai? tn^ »f ^ . uch apparatus. 

(4) Aft emergence evacuation pfeft ohall be 
pro' . ided te- facilitate evacuation &f ali 
perC ' Ono from Ai* afe* ift the e' l ent ef a 
chlorin e lealc. ft« o>acuation plan ' jhall 
include ercape rout e s te direct people 
from potential ^ . ourcec . »f chlorin e t» safe 
areas uphill t*f upi i i f ind ©f tb# hajard. 

fe4 Aft attendant familiar vrfth tfee evacuation 

rrWtTT T^TCCn I '^ t 'I ^T'^IIl HT CUT 111 IlL J ITIV J_^_^„^ 

i* ift H*er 
f9) Test kits or equipment capable of measur- 
m£ disinfectant le\el and pH must be main- 
tained at all public swimming pools. 
(10) W'ntten records of disinfectant level and 
pH must be recorded at least once during 
each dav of operation and maintained at the 
pool site for a penod of not less than six 
months. 



m 

flO) 

(111 

(12) 



of the pool bottom exceeds X to j_0 verti- 
cal rise to horizontaJ distance. 

Depth markings shall be provided as de- 
scnbed in Rule .2523 of this Section. 

Drain covers shall be m good condition 
and sccurelv attached. 



Damaged face plates or fittings shall be 
repaired or replaced. 

I nderwater light niches shall be main- 
tained or covered so as not to present a 
potential hazard to bathers. 

Surface skimmers shall be maintained in 
working condition with baskets and weirs 
in place. Overflow gutters and grates shall 
be maintained in working condition. 

and 
and 



Pool ladders with non-skid treads 
shaU 



stair railmgs 



be maintained 



securely fastened in place. Contrasting 
color bands at least two mches wide shall 
be apphed and maintained on the leadmg 
edge of stair treads. 
(13) Diving equipment and pool slides in- 
cluding stairs and raHrng shall be main- 
tained in good working order. 

Statutory Authority G.S. I30A-2S2. 



Staiuioty Authority G.S. I30.i-2S2. 

.2537 MAINTENANCE AND OPERATION 

(a) All public s\\imming pools constructed or 
remodeled on or after May _L N91 shall be 
mamtamed and operated m accordance with the 
Rules of this Section. 

(b) On or after .Mav _L 1993 all public swim- 
ming pools including those constructed prior to 
Mav 'L 1991 shall be maintained and operated in 
accordance with the following: 

( 1) All safety £iro\isions of Rule .2530 of this 
Section shall 



mmg pool 



(2) 



(3) 



be met except that swim- 
constructed pnor to May L^ 
[991 are not required to pro\ide a tele- 
phone. 

Decks shall be structurally sound and 
pro\'ide uniform walking surface with no 
offset greater than one half inch (1.3 cm). 



Ihere shall be no loose coping. 
(4) Artificial lighting shall be provided in ac- 
cordance with Rule .2524 of this Section 
for all pools used when natural hghting is 
not sufficient to make all parts of the pool 
and pool area clearh \isible. 
Fences and gates shaU be constructed and 



(5) 



maintained in accordance with Rule .2528 
of this Section. 



(6) Floatmg safety ropes and bottom 
markings shall be pro\ided as required in 
Rule .2523 of this Section where the slope 



.2538 FILL AND DRAW POOLS 

Fill and draw pools are prohibited. Pro\isions 
shall be made for tiltration and recirculation of 
water in all pubhc swimming pools, wading 
pools, and spas. 

Statutory Authority G.S. I30A-2S2. 

SECTION .2600 -S.ANIT.VTION OF 

RESTALR.ANTS .AND OIHER 

FOODHANDLING ESTABLISHMENTS 

.2607 STANDARDS AND APPRON AL OF 
PL.VNS 

(a) Plans and specifications for new food ser- 
vice establishments shall be submitted for review 
and approval to the local health agency prior to 
initiating construction. Plans and specifications 
shall also be submitted prior to construction of 
changes in the dimensions of food preparation 
areas, seating capacity or the addition of rooms 
to existing food service establishments. These 
plans shall include changes related to the increase 
in dimensions of food preparation areas, seating 
capacity or the addition of rooms. Plans and 
specifications for prototype "franchised" or 
■'chain" facihties shall also be submitted for re- 
\iew and approval to the Emironmental Health 
Senices Section, Division of Environmental 
Heahh. 

(b) Construction shall comply with approved 
plans and specifications. a«4 shall at- least con 



62 



:1 NORTH CAROLIl\A REGISTER April I, 1992 



PROPOSED RULES 



form vritb minimum stundards ootablinhod i» tb© 
North Carolina State Building Codo. ¥h« North 
Carolina Stato Building Coda htts boon adopt e d 
hf roForoncQ m acoordance with G.S. 150B l ' 1(o). 
A copy ©f tbe North Carolina Stato Building 
Cod e may be obtainod from tite North Carohna 
Dopartmont »f Insuranc e , P.O. 8e* 26387, 
Raleigh, North Carolina 2761 1. 

Statutory Authority G.S. I30A-248. 

.2610 STORAGE: HANDLING: AND DISPLAY 
OF FOOD 

(a) All unwrapped or unenclosed food and 
drink on display shall be protected in such man- 
ner that the direct line from the customer's 
mouth to the food shall be intercepted by glass 
or similar shields and shall be otherwise protected 
from public handling or other contamination, 
except that approved hand openings may be 
permitted on counter fronts. This requires 
standard counter protector installations for all 
cafeteria counters, salad bars, and similar type 
service to prevent contamination by customers' 
coughing and sneezing. 

(b) Customer self-service is permitted only un- 
der the following conditions: 

(1) Buffet-style Service. This style of service 
is not acceptable unless protective shields, 
equivalent to cafeteria counter protectors, 
are provided to intercept contamination; 
however, protective shields are not re- 
quired for buffet style service which is 
provided for a club, organization or pri- 
vate individual as a planned event and 
from which the pubhc is excluded. When 
food is served in this manner, the follow- 
ing requirements shall be met: 

(A) Potentially hazardous foods shall be 
replaced at least hourly; 

(B) Food containers shall be arranged con- 
veniently so customers' clothing does not 
come in contact with food; 

(C) Long-handled serving spoons, tongs, 
or other utensils shall be provided and 
used; 

(D) At the conclusion of the event, food 
that has not been consumed, shall be dis- 
carded. 

(2) When customers are aUowed to return to 
a self-service area, clean and sanitized 
tableware other than beverage cups and 
glasses, shall be made available for each 
return tnp. Written or verbal notice shall 
he provided informing customers that 
clean tableware needs to be used for re- 
turn trips. 



(3) (4i Family-style Service. In establishments 
featuring this style of service, patrons elect 
to participate in the family dining-table 
type of service. Ordinary serving dishes 
and utensils are acceptable. 

(c) Foods, except raw vegetables which are to 
be cooked, shall be kept under cover when not 
in the process of preparation and serving. Meat 
and other potentially hazardous foods shall not 
be stored on the floor, or in direct contact with 
shelves and racks of cold storage boxes, or per- 
mitted to come in contact with dirty clothes, 
newspapers, pasteboard, pre\iousIy-used paper, 
or other contaminated surfaces. If open dishes 
and pans containing food are stacked, food shall 
be protected with wax paper or foil. Food 
transported to a restaurant shall not be accepted 
unless properly wrapped, covered, or otherwise 
protected. Food and drink shall not be served 
to the general pubhc in the kitchen. In the case 
of "drive-in" restaurants, all food shall be covered 
or wrapped before dehvery to patrons' vehicles, 
to exclude vermin or insects, dust, and other 
contamination. 

(d) Containers for onions, slaw, mustard, and 
other condiments shall have covers and be kept 
covered when not in use. Sugar shall be dis- 
pensed with either pour-type dispensers or indi- 
vidual packages. Waiters and waitresses shall 
avoid unnecessary handling of food in the process 
of serving. 

(e) The estabhshment shall be kept free of flies, 
rodents, roaches, ants, and other vermin. Ani- 
mals and fowl shall not be permitted in a restau- 
rant, provided that seeing eye dogs accompanying 
blind persons and service dogs accompanying 
handicapped persons shall be exempted. All 
supplementary means necessary for the elimi- 
nation of flies, such as the installation of fly- 
repellant fans, and the routine use of approved 
insecticides shall be employed. 

(f) Dustlcss methods of floor clearung shall be 
used and aU except emergency floor cleaning shaU 
be done during those periods when the least 
amount of food and drink is exposed, such as 
after closing, or between meals. 

Statutory Authority G.S. I30A-248. 

.2624 TOILET FACILITIES 

(a) Every restaurant shall be provided with 
toilet facilities for each sex conveniently located 
and readily accessible at all business hours. Un- 
less specified elsewhere in these Rules, all restau- 
rants shall have toilets which arc convenient and 
accessible to employees and customers. Toilets 
for patrons shall be so located that the patrons 
do not pass through the kitchen to enter the toi- 



7:1 NORTH CAROLINA REGISTER April I, 1992 



63 



PROPOSED RULES 



let rooms. Intervening rooms or vestibules, if 
provided, shall be constructed and maintained in 
accordance with this Rule. Toilets shall be in the 
proximity of the restaurant and under control of 
the management. N e sS ' oonotruction shall com 
piy with North Carolina Stato Building Code fs- 
quircmontf . fef handicapped poroons. 44^ North 
Carolina Stato Building Cod e has boon adoptod 
by roforonco ift accordanoo with G.S. 150B l ' l(c). 
CopioD »f th« North Carolina State Building 
Codo may be obtained from tbe North Carolina 
Dopartmont ef Insurance, P.O. Be* 26387, 
Raioigh. North Carolina 2761 1. Floors and walls 
shall be constructed of non-absorbent, washable 
materials. Floors, walls, and ceilings shall be 
kept clean and in good repair. Toilet rooms shall 
be provided with self-closing doors, and kept free 
of flies and storage. Windows shall be screened 
if used for ventilation. Fixtures shall be kept 
clean and in good repair. 

(b) Signs shall be posted to advise the public 
of the locations and identities of the toilet rooms. 
Durable, legible signs which read that employees 
must wash their hands before returning to work 
shall be posted or stenciled conspicuously in each 
employees' toilet room. 

(c) Screens and doors are not required for toilet 
rooms at stadiums or facilities in which toilet 
rooms open into the interior of a building and 
the exterior doors of the building are self-closing. 

(d) /Ml toilet wastes and other sewage shall be 
disposed of in a public sewer system or, in the 
absence of a public sewer system, by an approved 
sanitary sewage system. 

Statutory Authority G.S. I30A-248. 

SECTION .2700 - SANITATION OF MEAT 
.MARKETS 

.2710 LIGHTING 

/Ml roomf . areas in which meat, meat food pro- 
ducts, poultrv' or poultry products are handled 
or prepared, or in which utensils are washed, 
shall be pro\ided with at least 7fl foot oandleti 50 
foot-candles of light on preparation work levels 
and at utensil washing work levels. At least 
30 foot candloo 10 foot-candles of light at 30 
inches abo\'e the floor shall be provided in all 
other areas and rooms including storage rooms 
and ualk-in units. Fixtures shall be kept clean, 
in good repair and shielded in all areas where 
meat, meat food products, poultn.' or poultr\ 
products are stored, handled, or prepared. 

Statutory Authority G.S. I30A-228. 

SECTION .2800 -SANIT.\TION OK CHILD DAY 
CARE FACILITIES 



.2822 FLRNITLRE AND TOYS 

(a) Furniture shall be of easily cleanable con- 
struction, and shall be kept clean and in good 
repair. 

(b) Equipment and toys provided by the facility 
shall be of easily cleanable construction, and shall 
be kept clean and in good repair. In infant and 
toddler rooms, mouth-contact surfaces shall be 
sanitised at least daily and more frequently if 
necessary. 

fe) Toys, furniture, oribo, ep other items, ha' i ing 
the proL r once ef load based point shall net- h% 

Statutory Authority G.S. 110-91. 

.2824 FLOORS 

(a) Floors and floor coverings of all food 
preparation, food storage, utensil-washing areas, 
toilet rooms, and laundry areas shall be con- 
structed of nonabsorbent, easily cleanable, dura- 
ble material such as sealed concrete, terrazzo, 
ceramic tUe, durable grades of linoleum or plastic, 
or tight wood impregnated with plastic. /Ml 
floors shall be kept clean and maintained in good 
repair. 

(b) Carpeting used as a floor covering shall be 
of closely woven construction, properly installed, 
and easily cleanable, such as 100 percent Olefm 
fiber carpet and backing, and shall be kept clean 
and maintained in good repair. Carpeting is 
prohibited in food preparation, equipment, 
utensil-washing areas, food storage areas, laundry 
areas, and toilet rooms. 

fc) Floors in areas, accessible to children, shall 
be free of peeling, ilaking, or chalkinn paint. 

Statutory Authority G.S. 110-91. 

.2825 WALLS AND CEILINGS 

(a) The walls and ceUings, including doors and 
windows, of all rooms and areas shaU be kept 
clean and in good repair. /Ml walls shall be 
nonabsorbent and easily cleanable. 

(b) Ceilings in rooms in which food is stored, 
handled or prepared, utensil-washing rooms, and 
toilet rooms shall be non-absorbent and easily 
cleanable. 

(c) Aft¥ load based paint r e adily accessible te- 
children" as defined « 44A NC-\C . 4^ shall be 
remosed Walls and ceilings, including doors and 
\\indov\s in areas accessible to children, shall be 
free of peeling, flaking, or chalking paint. 

Statutory Authority G.S. 110-91. 

.2832 OLTDOOR ARE.AS 



64 



:I NORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



(a) The premises, including the outdoor play 
area, shall be kept clean, drained and free of litter 
and hazardous materials. Grass and other vege- 
tation shall be maintained in a manner which 
does not encourage the harborage of vermin. 

(b) All outdoor activity areas shall be kept 
clean. /Ml debris, glass, dilapidated structures, 
and broken play equipment shall be removed. 
The play areas shall be free from unprotected 
wells, grease traps, cisterns, and utility equip- 
ment. 

(c) i^^f outdoor play oquipmont, tfe« following 
shall apply: 

(+) Equipm e nt fmiohes shall Bet includ e towe 
paint ef haj'.urdous wood prosonative 
treatment aft4 shall be kept' free ©f r«* 
afi4 corrosion; 

(3) The sandbox used in outdoor play shall be 
constructed to allow for proper drainage 
and shall be kept clean. 

Statutory Authority G.S. 110-91. 

SECTION .3100 - LEAD POISONING 
PREVENTION IN CHILDREN PROGRAM 

.3101 DEFINITIONS 

As used in this article, unless the context re- 
quires otherwise: 

(1) "Abatement" means the elimination or 
control of a lead hazard by methods ap- 
proved by the Department. 

(2) "Day care facility" means a structure used 
as a school, nursery, child care center, clinic, 
treatment center or other facility ser\ing the 
needs of children under six years of age in- 
cluding any outbuilding or other structure 
or surrounding land that may have been 
contaminated from such outbuildings or 
structures, accessible to children under six 
years of age. 

(3) "Department" means the Department of 
Environment, Health, and Natural Re- 
sources or its authorized agent. 

(4) "Dwelling" means a structure, all or part 
of which is designed for human habitation, 
including any outbuildings or other struc- 
tures, or surrounding land that may have 
been contaminated from such outbuildings 
or structures, accessible to children under six 
years of age. 

(5) "Elevated blood lead level" means a blood 
lead of 25 ug dl or greater, ©f tfe*4- k*vel as 
dotonninod i» t+HS most rocont stundardr . as 
e stablish e d by tl^ t-r^ Dopartment ^ 
I k'ullh a«4 Human LSor . ioo6, Public llL'ulth 
SoP i icos, Contoro fof Disoaf . o < 



(6) "Frequently visited" means presence at a 
dwelling, school or day care facility for eight 
hours or more a week or for 80 hours within 
a period of ten consecutive days. 

(7) "Lead hazard" means the presence of read- 
ily accessible, lead-bearing substances meas- 
uring 1.0 milhgram per square centimeter or 
greater by X-ray fluorescence analv^er or 0.5 
percent or greater by chemical analyses 
(A/\S); or 500 ppm or greater in soil; or 50 
parts per billion or greater in drinking water. 

(8) "Managing agent" means any person who 
has charge, care, or control of a building or 
part thereof in which dwelling units or 
rooming units are leased. 

(9) "Readily accessible" means capable of be- 
ing chewed, ingested, or inhaled by a child 
under six years of age. 

Statutory Authority G.S. J30A-/3/.5. 

SUBCHAPTER 18C - WATER SUPPLIES 

SECTION .0400 - WATER SUPPLY DESIGN 
CRITERIA 

.0403 SURFACE WATER FACILITIES 

(a) Unimpounded Stream. Both the minimum 
daily flow of record of the stream and the esti- 
mated minimum flow calculated from rainfall 
and run-off shall exceed the maximum daily draft 
for which the water treatment plant is designed 
with due consideration given to requirements for 
future expansion of the treatment plant. 

(b) Pre-settling Reservoirs. Construction of a 
pre-settling or pre-treatment rese^^■oir shaO be 
required where excessive bacterial concentrations 
or wide and rapid variations in turbidity or 
chemical quaUties occur. 

(c) Impoundments. Raw water storage capac- 
ity shall be sufficient to reasonably satisfy the 
designed water supply demand during periods of 
drought. 

(d) Clearing of Land for Impoundment. The 
area in and around the proposed impoundment 
of class 1 and class II reservoirs shall be cleared 
as follows: 

( 1 ) The area from Hve feet' abov e aH4 normal 
fuU level to Ave feet below the normal full 
level of the impoundment shall be cleared 
and grubbed of all vegetation and shall be 
kept cleared until the resen'oir is filled. 
provid e d that- the »fea twe feet aboso tl*e 
noimal foU fe¥e4 may b^ roduccd if A* 
clearing at tl»t L ' k" . ation would oxowd a 
horizontal distanc e ©f ^ feet from th«» felt 
lovol. Secondar)' growth shall be removed 
prior to flooding. A margin of at least 50 



7:1 NORTH CAROLIN.A REGISTER April I, 1992 



65 



PROPOSED RULES 



feet around the impoundment shall be 
owned or controlled by the water supplier. 

(2) The entire area below the five foot water 
depth shall be cleared and shall be kept 
cleared of all growth of less than six inches 
in diameter untU the reservoir is filled. 
Stumps greater than six inches in diameter 
may be cut off at ground le\'el. 

(3) AH brush, trees, and stumps shall be 
burned or removed from the watorohod. 
reservoir area. 

(e) Intakes, Pumps, Treatment Units, and 
Equipment. Raw water intakes, pumps, treat- 
ment units and equipment shall be designed to 
pro\ide water of potable quality meeting the wa- 
ter quality requirements stated in Section .1500 
of this Subchapter. 

Statutory Authoritv G.S. I30A-315; 130A-317; 
P.L. 93-523. 

■k-k-k-k-k-k-k-k-k-k-k-k-k-k-k-ki:* 



1\ otice is herebv given in accordance y.-ith G.S. 
I50B-21.2 that the EH. \R-Commission for Health 
Services intends to amend rule(s) cited as 1 5.4 
\C.4C 21 A .0819; 21 B .0303 .-adopt rule(s) cited 
as 15A \CAC 24C .0001. 

1 he proposed effectixe date of this action is July 
1, 1992. 

1 he public hearing will be conducted on the fol- 
lowing dates, times and locations: 

April 20. J 992 
''.-30 p.m. 



Conference Center 

Charlotte-Mecklenburg 

Government Center 

600 East 4th Street 

Charlotte. .\C 

April 24. 1992 

1 :30 p.m. 

1 St Eloor .Auditorium 

Highway Building 

J South Wilmington Street 

Raleigh.yC 

April 2^. 1992 

^:30 p.m. 

County Commissioners' .Auditorium 

Room 225 

Pitt County Office Building 



1717 West 5th Street 
Greenville, AC. 

iXeason for Proposed Action: 

Rule 15.\ NCAC 2]A .0819 - This amendment is 
necessary to clarify prohibitions concerning the use 
of .Adolescent Pregnancy Prevention Program 
(APPPJ grant funds. 

Rule I5.\ NC.VC 21B .0303 - The General Assembly 
added general surgeons as an eligible provider 
group to receive ROCI funds. Thev provided 
S300.000 for FY 1991-92 to expand the program. 
This amendment will allow general surgeons to 
start participation in the program to coincide with 
the new funding cycle. 

Rule I5.\ NC-\C 24C .0001 - This adoption estab- 
lishes categories essential to public health services 
as required by G.S. 130A-1.1. 

\^ omment Procedures: .411 persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to John P. 
Barkley, Department of Justice, P.O. Box 629, 
Raleigh, KC 27602-0629, (919) 733-4618. If you 
desire to speak at the public hearing, notify John 
P. Barkley at least 3 days prior to the public 
hearing. Oral presentation lengths may be limited 
depending on the number of people that wish to 
speak at the public hearing. Only persons who 
have made comments at a public hearing or who 
have submitted written comments will be allowed 
to speak at the Commission meeting. Comments 
made at the Commission meeting must either 
clarify previous comments or address proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS \ERY IMPORTAST THAT ALL I\- 
TERESTED A\D POTENTIALLY AF- 
FECTED PERSOXS, GROUPS. 
BU SIS ESSES, ASSOCIATIOSS, I.XSTI- 
TLTIONS, OR AGE.XCIES .MAKE THEIR 
VIEWS AXD OPI.MOXS K.WWX TO THE 
CO.\I.\IISSIO.\ FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARIMG A\D 
COMMEST PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE A\Y OR ALL PRO- 
I JSIOSS OF THE PROPOSED RULES. THE 
COMMISSIOS MAY MAKE CHASGES TO 
THE RULES AT THE COMMISSIOS MEET- 
I\G IF THE CHANGES COMPLY WITH G.S. 
l50B-2l.2(f). 

CH.\PTER 21 - HEALTH: PERSONAL HEALTH 



66 



7:1 SORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



SUBCHAPTER 21A - FAMILY PLANMNG 

SECTION .0800 - ADOLESCENT PREGNANCY 
AND PREMATl RITY PREVENTION PROJECT 

.0819 OPERATING STANDARDS 

(a) Upon approval of a proposal for grant 
funds a budget shall be negotiated and a contract 
shall be signed between the Contractor and the 
MCH Division. 

(b) Project funds shall be used solely for the 
purposes detailed in the approved proposal and 
budget. Expenditures for equipment require 
prior .\ICH Division approval. 

(c) Contractors shall not use APPP funds for 
purposes that are prohibited by statute, or for the 
following purposes; 

(1) purchase of inpatient care; 

(2) purchase or improvement of land; 

(3) purchase, construction, or permanent im- 
provement (other than minor remodeling) 
of any building or other facility; 

(4) purchase of major equipment; 

(5) purchase aft4 or prescriptions of 
contraceptives; 

(6) transportation to aft4 or from abortion 
services; or 

(7) abortions. 

(d) APPP projects shall not impose charges on 
clients for services. 

(e) Staff quahfications, training, and experi- 
ences shall be appropriate for implementing 
project activities. 

(f) Each project shall participate in regional 
meetings with state staff and other project staff. 

(g) The start-up period before project activities 
are implemented shall not exceed six months. 

(h) Each project shall obtain approval from the 
MCI I Division prior to making changes in pro- 
gram goals, objectives, and target populations 
during the Five Year Funding period. 

(i) Each project shall establish and implement 
a program review process on an ongoing basis. 

(j) APPP projects shall not distribute 

contraceptives on school property. 

Statutory Authoritv G.S. J 30.4- J 24: S.L. 1989. c. 
752. s. 136. 

SUBCHAPTER 2IB - MATERNAL HEALTH 

SECTION .OJOO - RURAL OBSTETRICAL CARE 
INCENTIVE FUNDS 

.0303 PinSICIANS AND NURSE-MIDWH ES 
ELI(;iBLE TO PARTICIPVIE 



(a) A physician or nurse-midwife is eligible to 
receive rural obstetrical care incentive funds if the 
physician or nurse-midwife: 

(1) is licensed to practice medicine or ap- 
proved to practice midwifery in North 
Carolina; and 

(2) carries malpractice Uability insurance that 
is not being totally or partially paid for the 
physician or nurse-midwife as an em- 
ployee of the federal government or by an 
institution of higher learning or an affiliate 
of the institution. 

(b) A physician or nurse-midwife does not have 
to reside in the underser\'ed county to be eligible 
to participate. 

(c) A general surgeon is eUgible to receive Rural 
Obstetrical Care Incentive Funds if the general 
surgeon meets the participation requirements in 
S.L. 1991. Chapter 689. Section 232. 

Statutory Authority S.L. 1989, c. 1066, s. 49. 

CHAPTER 24 - GENERAL PROCEDURES FOR 
PUBLIC HEALTH PROGRAMS 

SUBCHAPTER 24C - PUBLIC HEALTH 
SERVICES 

.0001 ESSENTIAL PUBLIC HEALTH 
SERVICES 

G.S. 13QA-1.1 (b) establishes categories of es- 
sential public health services and directs the De- 
partment to assure, within the resources available 
to it, that these services are available and acces- 



sible to all citizens of the State. The following 
are the specitic services to be provided under each 
essential public health services category: 
(1) Health Support: 
(a) .Assessment of health status, health needs. 






and environmental risks to health; 
Patient and community education; 



Public health laborator\f support for es- 
sential public health services; 
(d) Registration of vital events; 

(2) Fnvironmental Health: 

(a) I odging and institutional sanitation; 

(b) On-site domestic sewage and wastewater 
disposal; 

(c) Water and food sanitation and safety: 
(i) Public water supply safety; 

(ii) Private water supply sanitation; 

(iii) Milk sanitation: 

(iv) Shcllllsh sanitation; 

(v) Public swimming pool sanitation; 

(vi) Food sanitation; 

(3) Personal Health: 
U) Child health: 

(i) Lead poisoning pre\'ention: 
(ii) Well -child care: 



7; / NOR TH CA R OLIN.4 R EC, IS TER .April I, 1992 



67 



PROPOSED RULES 



(iii) Genetic sen'ices; 

(iv) Services to the developmcntally- 

disabled child; 
(v) Child care coordination; 
(vi) Adolescent health services; 
(\-ii) School health services; 
(b) Chronic Disease Control; 



[i2 I'.arlv detection and referral: 
(ii) I'atient education; 

(iii) Chronic disease monitoring and treat- 
ment; 
(iv) Home health services; 

(c) Communicable Disease Control; 
(i) 1 uberculosis control; 

(li) Immunization; 

(iii) Hpidemilogic investigation. sur\cillance 
and general communicable disease con- 
trol; 

(iv) HIV STD control; 

(v) Rabies control; 

(d] Dental Public Health: 
(i) Dental health education; 



(ii) Fluoride prophylaxis; 

(iii) Sealant utilization; 

(iv) Dental screening and referral; 

(e) Family Planning: 

(i) Preconceptional counseling; 
(ii) Contraceptive care; 
(iii) Fertility services^ 

(f) Health Promotion and Risk Reduction: 



(i) Fife style behavior modification; 

(ii) Injury control; 

(iii) Nutntion counsellina; 



(g) Maternal 1 lealth Services: 

(i) Prenatal and postpartum care; 
(ii) Maternity care coordination. 

Statutory Authority G.S. 1 30 A- 1 .1. 

TITLE 19.\ - DEPARTMENT OF 
TRANSPORTATION 



lyotice is hereby given in accordance with G.S. 
I50B-2I .2 that the Division of Motor Vehicles in- 
tends to amend rule(s) cited as I9A NCAC 3D 
.0801. 

1 he proposed effective date of this action is .fulv 
I. 1992. 

/l public hearing is not required. The text of this 
proposed ride was published in the North Carolina 
Register on January 15, 1992 without a scheduled 
hearing. The agency failed to adopt the mle fol- 
lowing the com/ncntar}' period. \o public hearing 
was requested. The te.xt of this proposed rule 



differs substantially from the rule published on 
January 15, 1992. 

JXeason for Proposed Action: G.S. 20-183. 2(a) 
as amended effective June 25, 1991 provides that 
the Commissioner of the Division of Motor Vehi- 
cles may designate the place on a vehicle where a 
current approved federal inspection certificate 
must be displayed. This Rule designates the lo- 
cation of the certificate. 

(^ omment Procedures: Written comments on 
the proposed rule may be submitted by mailing the 
comments to the following address within thirty 
days after the proposed text is published: William 
R. Stout, Motor Carrier Safety Unit. Division of 
Motor Vehicles, 1 100 Mew Bern Avenue, Raleigh, 
N.C. 27697. 

CHAPTER 3 - DIVISION OF MOTOR 
VEHICLES 

SLBCHAPTER 3D - ENFORCEMENT SECTION 

SECTION .0800 - S.VFETV RLLES .\ND 
REGLLATIONS 

.0801 SAFETY OF OPERATION AND 
EQl IPMENT 

(a) The rules and regulations adopted by the 
U.S. Department of Transportation relating to 
safety of operation and equipment (49 CFR 
Parts 390-398 and amendments thereto) shall 
apply to all for-hire motor carrier vehicles, 
whether common carriers, contract carriers or 
exempt carriers and all private motor carriers, 
vyhile engaged in interstate commerce over the 
highways of the State of North Carolina. 

(b) The rules and regulations adopted by the 
U.S. Department of Transportation relating to 
safety of operation and equipment (49 CFR 
Parts 390-398 and amendments thereto) shall 
apply to all for-hire motor carrier vehicles, 
whether common carriers, contract carriers or 
exempt carriers and all private motor carrier ve- 
hicles engaged in intrastate commerce over the 
highways of the State of North Carolina if such 
vcliiclcs have a GVAVR of greater than 26.000 
pounds; are designed to transport 16 or more 
passengers, including the driver; or transport 
hazardous materials required to be placarded 
pursuant to 49 CFR 170-190. Proyidcd, the 
following exceptions shall also apply to all intra- 
state motor carriers: 

(1) An intrastate motor earner driver may not 
drive more than 12 hours following eight 
consecutive hours off duty: or for any pe- 
riod after having been on duty 16 hours 
following ciglit consecutive hours off duty; 



68 



7:1 NORTH CAROLINA REGISTER April I, 1992 



PROPOSED RULES 



or after having been on duty 70 hours in 
seven consecutive days; or more than 80 
hours in eight consecutive days. An 
intrastate driver will be determined by his 
previous seven days of operation. 
(2) Persons who otherwise qualify medically 
to operate a commercial motor vehicle 
within the State of North Carolina will be 
exempt from pro\isions of Part 
391.11(b)(1) and Part 391.41(b)(1) 
through (11) and therefore will be au- 
thorized for intrastate operation if licensed 
prior to March 30, 1992, are approved by 
an Exemption Review Officer appointed 
by the Commissioner of Motor Vehicles 
and meet all other requirements of this 
Section. These drivers shall continue to 
be exempt upon completion of a biennial 
medical examination Lndicatmg the condi- 
tion has not worsened or no new disqual- 
ifying conditions have been diagnosed and 
upon continued approval of an Ex- 
emption Review Officer. 

(c) The rules and regulations adopted by the 
U. S. Department of 1 ransportation relating to 
inspection, repair and maintenance of motor ve- 
hicles (49 CFR Part 396.17 through 396.23 and 
including Appendix G, and amendments thereto) 
shall apply to aU for-hire motor carrier vehicles, 
whether common carriers, contract carriers or 
exempt carriers and all private motor carrier ve- 
hicles engaged in intrastate commerce over the 
highways of the State of North Carolina if such 
vehicles have a GV^VR of greater than 10,000 
pounds. Provided, any farm vehicle shall be ex- 
empt from the requirements of this Paragraph if: 

(Ij It is being operated by a farmer (or a per- 
son under the direct control of the farmer) 
as a private motor carrier of property; 

(2) It is being used to transport either: 

(A) agricultural products, or 

(B) farm machiner> , farm suppUes, or both, 
to and from a farm; 

(3) It is being operated solely within this State 
and within 150 air-miles of the farmer's 
farm; 

(4) It is not being used in the operation of a 
for-liire motor carrier; and 

(5) It is not carrying hazardous materials of a 
type or quantity that requires the vehicle 
to be placarded in accordance with 49 
CFR 177.823. 

(d) E\ery motor vehicle registered or required 
to be registered in North Carohna and subject to 
the inspection requirements of the Federal Motor 
Camer Safety Regulations (49 CFR Part 396) 
which does not display a current approved State 
inspection certificate as pro\ided in N.C.Cj.S. 



20-183.2 must display a current approved federal 
inspection certificate when operated on the 
streets and highways of this State. Q» s*4l- 
pro poll I'd i i ohicloo the inspootion ocrtifioato shall 
be looatud »» tfee outside ef t+te driver'nt door es- 
oluoi^o »f the window ef Feaf view mirror. On 
self-propelled vehicles the federal inspection cer- 
tificate shall be displayed on the outside of the 
vehicle in a readily visible location on. or in the 
immediate vicimty of, the dri\er's door exclusive 
of the window or rear view mirror. On trailers 
and semitrailers, the federal inspection certificate 
shall be located on the left side as near as possible 
to the outside lower front of the vehicle. The 
inspection certificate shall contain at least the 
following legible information: 

(1) The date of inspection; 

(2) Name and address of the motor carrier or 
other entity where the inspection report 
required by 49 CFR 396.2 l(aj is main- 
tained; 

(3j Information uniquely identifying the ve- 
hicle inspected if not clearly marked on 
the vehicle; and 

(4) A certification that the vehicle has passed 
an inspection in accordance with 49 CFR 
396.17. 

Statutory Authority G.S. 20-3S4; 20-I83.2(a). 

TITLE 21 - OCCLP.\TIONAL LICENSING 
BOARD 



lyotice is hereby given in accordance with G.S. 
J50B-2J.2 that the .Worth Carolina Board of 
Electrolysis Examiners intends to adopt nile(s) 
cited as 21 SCAC 19 .0102. .030! - .0303. 



1 he proposed effective date of this action is July 
I. 1992. 

I nstmctions on how to demand a public hearing 
(must be requested in writing within 15 days of 
notice) : .A request for a public hearing must be 
in writing and must be filed with the Board at its 
mailing address (cjo Patricia Holland, 205 
W'estview Place, High Point, \ortli Carolina 
27260 J by April 16, 1992. 



R 



easons for Proposed A ctions: 



21 NC.AC 19 .0102 - It is necessary to inform the 
public of the Board's requirements for the calling, 
holding, and conducting of meetings. 

21 NC.VC 19 .0301 - .030.? - It is necessary to in- 
form the public of the Board's requirements for 



7:1 NORTH CAROLIN.A REGISTER April I, 1992 



69 



PROPOSED RULES 



petitions for rulemaking, declaratory judgments, 
and the conduct of contested cases. 

(^ omment Procedures: The record of hearing 
will be open for receipt of written comments from 
April I, 1992 through May 1, 1992. Such 'com- 
ments must be mailed to the Board at its mailing 
address (co Patricia Holland, 205 lVest\ie\v 
Place, High Point. Sorth Carolina 27260). 

CHAPTER 19 - BOARD OF ELECTROLYSIS 
EXAMINERS 

SECTION .0100 - GENERAL PROVISIONS 

.0102 MEETINGS 

(a) The Board shall hold two resular meetinas 



each year in the months of Januar.' and Jul\' on 
call of the Chairman, or. if the Chairman is una- 
hlc for an\' reason to call the meetina. the \'ice- 



chauman or the Treasurer in that order. Special 
meetings of the Board may be called at any time 
by the Chairman or any two board members. 

(b) The Chairman shall conduct aU meetmgs: 
in the absence of the Chairman, the \'ice- 



chairman or the Treasurer in that order shall 
conduct the meeting. 



(c) The otTicer who is scheduled to conduct the 
meeting shall prepare an agenda for the meeting. 

(d) The Board shall set aside time at its regular 
meetings to hear members of the public who 
wish to speak to the Board. If time permits, the 
Board may also aUow members of the public to 
speak at special meetmgs. .Anyone who wishes 
to speak concerning an item on the agenda shall 
notify the presiding officer before the meeting is 
called to order. An\one who Nsishes to speak 
concerning an item that is not othenyise sched- 
uled to be on the agenda shall, at least 72 hours 
before the meetmg. contact the scheduled presid- 
ing otTicer to request that the item be included. 
The request must include the identity of the 
maker and the nature of the item and must be m 



writing unless the maker can show to the satis 



faction of the scheduled presiding officer that it 
was not reasonably possible to pro\'ide a \'.ritten 
request. Anxone who speaks to the Board at a 
regular meeting under the pro\isions -of this Par- 
agraph shall be allowed a time period of fiye 
minutes, except that the presiding officer may 
further limit time if seyeral persons haye asked to 
speak. The presiding otTicer ma\ limit time as 
needed at special meetings. At any meeting, the 
presiding officer may require groups to appoint 
a representati\-e to speak for members of the 
group on an issue. rVlthough members of the 
Board may ask specific questions of those 
speaking, the time allotted pursuant to this Par- 



agraph shaU not be used either to debate the rel- 
ative ments of any proposal or to examine 
members of the Board. 

Statutory Authority G.S. 8S.A-5. 

SECTION .0300 - ADMINISTRATE E LAW 
PROCEDURES 

.0301 PETITIONS FOR RLLENLAKING 
HEARINGS 

(a) .Any person may petition the Board to 
adopt a neu' rule or to amend or repeal an exist- 
ing rule by sending a written petition for 
rulemaking to the Board at the Board's maihng 
address. The petition must be entitled ''Petition 
for Rulemaking" and must mclude the following 
information: 

f 1 1 the name and address of the person sub- 
mitting the petition; 

(2) a citation to any rule for uhich an 
amendment or repeal is requested; 

(3) a draft of any proposed ne\s" rule or 
amended rule: 

(4) an explanation for the request, with any 
supportmg mformation the petitioner be- 
lie\es IS relevant and v.ishes the Board to 
consider: and 

(5) an identification of the persons or class of 
persons most hkely to b^ affected by the 
proposed action. 

(b) The Board shall decide N'.hether to grant 
or deny the petition and may request additional 
information. When the Board demes a petition. 
the notice of denial shall state the reason. 

Statutory .Authority G.S. 88.4-6; I50B-20. 

.0302 DECLAR.\TORY RULINGS 

(a) .AU petitions for declarator.' Rilings shall be 
in u'nting and shall be sent to the Board at its 
mailing address. Each petition shaU be entitled 
"Petition for Declaratory Ruling" and shall in- 



— . — elude the foUowmg information: 



Lii 

(2) 



the name and address of the petitioner: 
the statute or rule to which the petition 
relates: 

(3) a concise statement of the manner in 
\\'hich the petitioner has been or will be 
injured or adversely affected bv th£ statute 
or rule: 

(4) if the petitioner \'.ishes to make an oral 
presentation to the Board on the petition, 
a statement clearh' requesting an oppor- 
tunity to appear and be heard. 

(b) The Board may refuse to issue a declarator.' 
ruUng when: 



( 1) the petition does not comply with this 
Rule: 



70 



7:1 NORTH C.4R0LL\A REGISTER .April 1, 1992 



PROPOSED RULES 



(2) the Board has previously issued a the OfTice of Administrative \ learings shall he 



01 

HI 

[51 
(61 



declaratory Riling on substantially similar 
facts; 

the Board has prc\iouslv issued a final 
aaency decision m a contested case on 
substantially sunilar facts: 



the facts underlying the request for a 
declaratory ruling were specitically con- 
sidered at the time the rule was adopted; 
the subject matter of the petition is m- 
\olved in pending litigation; 
the Board determines for good cause not 
listed m this Paragraph that issuance of a 
declaratory ruling is undesirable. 



Statutory Authority G.S. 8SA-6; I50B-4. 

.0303 CONTESTED CASES 

(a) The following rules establishing procedures 
for contested cases, adopted by the OITice of Ad- 
ministrati\e Hearings and contained in I'itle 26, 
Chapter 3 of the North Carolina Administrative 
Code, are hereby adopted by reference for con- 
tested cases for which the Board has authonty to 
adopt rules under G.S. 15(IB-38: 26 NCAC 3 
.0001(1). .0005. .01106, .0013. .0014. .0015, .1)1116. 
.0018, .0019, .0020, .0021. This adoption applies 
to the listed rules as amended as of November J_j^ 
1991 and does not include subsequent amend- 
ments. (Copies of these Rules wiU be made 
a\ailable for inspection by arrangement; anyone 
wanting to inspect these Rules shall write the 
Board at its mailing address. Copies of the listed 
rules may be obtained from the Board at a charge 
of two dollars and fift\- cents (S2.50) by writing 
the Board at its mailing address. 

(b) F'or the purposes of this Rule, references in 
the rules listed in Paragraph (a) of this Rule to 



deemed to be references to the Board, references 
to the administrative law judge shall be deemed 
to be references to the presiding officer for board 
hearings, reference in 26 NCAC 3 .0005 to G.S. 
150B-33 shall be deemed a reference to G.S. 
150B-40, and the words "enter a show cause or- 



der returnable in Superior Court for contempt 
proceedings in accordance with G.S. 
150B-33(b)(S)" in 26 NCAC 3 .0014 shall be 
deemed to read, ''apply to the Superior Court for 
an order to show cause in accordance with G.S. 
150B-40(c)(6)". 

(c) Any person who belie\'es that his or her 
rights, duties, or privileges have been affected by 
the Board's administrative action but who has 
not received a notice of hearing pursuant to G.S. 
150B-38 may file a written request for a hearing. 
The request must be entitled "Request for Ad- 
ministrative Heanng" and must contain the fol- 
lowing: 

( 1) the name and address of the petitioner; 

(2) a concise statement of the action taken by 
the Board which is chaUenged; 

(3) a concise statement of the way in which 
the petitioner has been aggrieved; and 

(4) a clear and specific statement of request for 
a hearing. 

Without waiving any right to a formal hearing, 
an individual ma\' first seek to resolve the issue 
infonnalK with the Board. 



(d) The Board may elect either to conduct a 
hearing itself or to request the designation of an 
administrative law judge from the Office of Ad- 
ministrative Hearings to preside. 

Statutory Authority G.S. 8SA-6; I50B-38. 



7:1 NORTH CAROLINA REGISTER .April I, 1992 



71 



LIST OF RULES CODIFIED 



1 he List of Rules Codified is a listing of rules that were filed with OAH in the month indicated. 


rCev: 




Citation 


= Title, Chapter. Subchapter and Rule(s) 


AD 


= .Adopt 


AM 


= .Amend 


RP 


= Repeal 


With Chgs 


= Final text differs from proposed text 


Eff Date 


= Date rule becomes effective 


Temp. Expires 


= Rule was fled as a temporary^ rule and expires on this date 



NORTH CAROLINA ADMINISTRATIVE CODE 
FEBRl ARV 1992 



TITLE DEPARTMENT 

4 Economic and Community 

Development 

5 Correction 

10 Human Resources 
13 Labor 



TITLE DEPARTMENT 

15A Environment, Health, 

and Natural Resources 

17 Revenue 

21 Occupational Licensing Boards 

2 - Architecture 
14 - Cosmetic Art Examiners 
17 - Dietetics Nutrition 



Citation 


AD 


AM 


RP 


With 
Chgs 


KfT. 
Date 


Temp. 
F'xpires 


4 NCAC 6C .0407 










03 02 92 




5 \C\C 2[ .1504 -.1506 










03 19 92 


09 15 92 


10 NCAC IC .0603 










03 02 92 




26B .0104 








• 


04 01 92 




13 NCAC 13 .0101 








• 


03 02 92 




.0203 










03 02 92 




.0205 










03 02 92 




.0211 










03 02 92 




-0213 










03 02 92 




.0415 










03 02 92 




15A NCAC 2B .0305 










04 01 92 




.0309 










04 01 92 




2D .1209 










03 02 92 




4\ .0005 








• 


04 01 92 




.000" 








• 


04 01 92 





72 



7:1 NORTH CAROLINA REGISTER .April!, 1992 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


EfT. 
Date 


Temp. 
E.xpires 


7M .0403 




• 






04 01 92 




lOB .0105 




• 




• 


04 01 92 




.0202 - .0203 




• 






04 01 92 




lOD .0002 - .0003 




• 






04 01 92 




lOF .0354 




• 






04 01 92 




19C .0206 


• 








03 02 92 




21 NCAC 2 .0209 




• 




• 


07 01 92 




14J .0501 - .0502 


• 








03 02 92 




14L .0105 




• 




• 


03 02 92 




.0216 




• 






03 02 92 




17 .0001 - .0015 


• 








03 19 92 


09 13 92 



7: 1 NOR TH CA ROLINA R EG IS TER April I, 1992 



73 



RRC OBJECTIONS 






1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
l43B-30.2(c). State agencies are required to respond to RRC as provided in G.S. l43B-30.2(d). 



ADMIMSTRATION 



State Construction 

/ NCAC 30F .0101 - Authority 

Agency Revised Rule 
1 NCAC 30F .0/03 - Definitions 

Agency Revised Rule 
I NCAC 30F .0202 - Pre- Bid Conferences and Site Reviews 

Agency Revised Rule 
J NCAC 30 f .030 J - Definitions 

Agency Revised Rule 
1 NCAC 30F .0302 - CherallJob Performance 

Agency Revised Rule 
I NCAC 30F .0303 - Interim Contractor Evaluation 

Agency Revised Rule 
J NCAC 30F .0305 - Report Compilation 

Agency Revised Rule 
I NCAC 30F .0401 - Post-Occupancy Evaluation 

Agency Revised Rule 
I NCAC 30F .0403 - Appeals of Assigned Eval or Disqual from Bidding 

Agency Revised Rule 

State Employees Combined Campaign 

/ NCAC 35 .0/03 - Organization of the Campaign 

Agency Revised Rule 
J NCAC 35 .0202 - Criteria for Acceptance 

Agency Revised Rule 
/ NCAC 35 .0302 - Response 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



/Oi/7l9/ 
/ 1 12 1 19/ 
/0i/7j9/ 
/Ii2i:9/ 
/0,/7,9/ 
l/l2/i9/ 
/0j/7j9/ 
/II2IJ91 
I0j/7;9/ 
/Ii2/;9/ 
l0:/7:9/ 
//;2i;9/ 
/ 011719/ 
/ 1121,9/ 
/0,/7,9/ 
//i2i;9/ 
/ 01 1719/ 
/ 1,21,9/ 



01,24,92 
01124,92 
01 1, 24 ,92 
0112492 
01 1 24, 92 
01124,92 



AGRICULTURE 

Plant Industry 

2 NCAC 4SE .0/0/ - Definitions 
Agency Revised Rule 
Agency Responded 
Agency Withdrew Rule 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol 

/4A NCAC 91 f .0304 - Notifying Registered Owner 
No Response from Agency 
Agency Withdrew Rule 



RRC Objection /0J7 91 

RRC Objection /0,/7,9/ 

No Action /2j/9,9/ 

02120,92 



RRC Objection /2:i99/ 

No Action 0/,24 92 

02.20 92 



74 



7:1 NORTH CAROLINA REGISTER April I, 1992 



RRC OBJECTIONS 



ECONOMIC AND COM.MLN.ITY DEVELOPMENT 



Credit Union Division 

4 SCAC 6C .0407 - Business Loans 
Agency Revised Rule 

Savings Institutions Division: Savings Institutions Commission 

4 NCAC I6A .0105 - Restrictions: Payment/ Dividends/ Repurchase/ Stock 

Agency Revised Rule 
4 \CAC J6C .0402 - Application: Guidelines/ Approval, Administrator 

Agency Revised Rule 
4 NCAC I6C .0403 - General Policies 
4 NCAC I6D .0301 - General Policies 

Agency Revised Rule 
4 NCAC I6E .0103 - Composition of Board of Directors 

Agency Revised Rule 
4 NCAC J6E .0105 - Amendment of Converted Savings Bank's Charter 

Agency Revised Rule 
4 NCAC I6E .0301 - General Policies 

Agency Revised Rule 
4 NCAC I6E .0303 - Required Policies 

Agency Revised Rule 
4 NCAC I6E .0502 - Holding of Certificate or Passbook 

Agency Revised Rule 
4 NCAC 16G .0404 - Information Prior To Approval/ Plan/ Conversion 

Agency Revised Rule 
4 NCAC I6G .0510 - Use of Proxy Soliciting Material to be Authorized 

Agency Revised Rule 
4 NCAC I6G .05/3 - Material Required to be Piled 

Agency Revised Rule 
4 NCAC I6G .0714 • Estimated Price Information: Proxy Statements 

Agency Revised Rule 
4 NCAC I6G .0720 - Period for Completion of Sale 

Agency Revised Rule 
4 NCAC I6G .0722 - Extensions of Time to Complete Offerings 

Agency Revised Rule 
4 NCAC I6G .0825 - Requirements as to Paper and Printing 

Agency Revised Rules 
4 NCAC 16H .0002 - Grounds 

Agency Repealed Rule 

4 NCAC 16H .0008 - Wah'er 

Agency Revised Rule 
4 NCAC 161 .0702 - Definitions and Other Terms 

Agency Revised Rule 
4 NC4C 161 .0703 - Stds for Approval of Acquisition: Duties Conduct 

.Agency Re\'ised Rule 
4 .\CAC J 61 .0902 - Acquisition Procedure 

Agency Revised Rule 
4 NCAC 161 .1003 - Acquisition Procedure 

Agency Revised Rule 

4 NCAC 161 .1202 - Conversion Procedure 



RRC Objection 01/24/92 
Obj. Removed 02/20/92 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 



01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01;24/92 
01/24/92 
01/24/92 
01/24/92 
01/24/92 
01/24i92 
01/24/92 
01/24/92 
01,24/92 
01!24:92 
01/24, 92 
01/24/92 



7:1 NORTH CAROLINA REGISTER April I, 1992 



75 



RRC OBJECTIONS 



Agency Re\'ised Rule Obj. Removed 01 124192 

4 NCAC 16J .0003 - Waiver RRC Objection OJ/24/92 

Agency Revised Rule Obj. Removed 01 124192 

4 NCAC I6K .000/ - Definitions RRC Objection 0// 24/92 

Agency RevL^ed Rule Obj. Removed 0// 24/92 

4 NCAC I6K .0005 - Books and Accounts RRC Objection 01/24/92 

Agency Revised Rule Obj. Removed 01/24/92 

4 NCAC I6K .0009 - Self- Dealing RRC Objection 01/24/92 

Agency Revised Rule Obj. Removed 01/24/92 

4 NCAC I6K .0010 - Custody of Investments RRC Objection 01/24/92 

Agency Revised Rule Obj. Removed 01/24/92 

4 NCAC I6L .0004 - Waiver RRC Objection 01/24/92 

Agency Re\'ised Rule Obj. Removed 01/24/92 

EN\ IRONMENT, HEALTH, ASD NATURAL RESOURCES 



Coastal Management 

15A NCAC 7H .0306 - General Use Standards far Ocean Hazard Areas 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with OAH 
ISA NCAC 7 J .0301 - Who is Entitled to a Contested Case Hearing 
ISA NCAC 7 J .0302 - Petition For Contested Case Hearing 
ISA NCAC 7 J .0402 - Criteria for Grant or Denial of Permit Applications 
ISA NCAC 7M .0201 - Declaration of General Policy 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with OA H 
ISA NCAC 7M .0202 - Policy Statements 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with OA H 
ISA NCAC 7M .0303 - Policy Statements 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with 0.4 H 
ISA NCAC 7M .0403 - Policy Statements 

Agency Responded 

Agency Responded 

Agency Revised Rule 
ISA NCAC 7M .0901 - Declaration of General Policy 

Agency Responded 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule with 0.4 If 

Health: Epidemiology 

ISA NCAC 19 A .0202 - Control Measures - IllV 

Sedimentation Control 



RRC Objection 
No A ction 

Eff 

RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
No Action 
No Action 

Eff 

RRC Objection 
No Action 
No Action 

Eff 

RRC Objection 
No Action 
No Action 

Eff 

RRC Objection 
No A ction 
No Action 
Obj. Removed 
RRC Objection 
No A ction 
No A ction 

Eff 



01/24/92 
01/24/92 
01/24/92 
03/01/92 
02/20/92 
02/20/92 
10/17/91 
10/17/91 
12/19/91 
01/24/92 
01/24/92 
03/01/92 
10/17/91 
12/19/91 
01/24/92 
01/24/92 
03/01/92 
10/17/91 
12/19/91 
01/24/92 
01/24/92 
03/01/92 
10/17/91 
12/19/91 
01/24/92 
02/20/92 
10/17/91 
12/19/91 
01/24/92 
01/24/92 
03/01/92 



RRC Objection 10/17/91 



76 



7:1 NORTH CAROLINA REGISTER April I, 1992 



RRC OBJECTIONS 



ISA NCAC4A .0005 - Definitions 

Agency Responded 

Agency Revised Rule 
ISA SCAC4C .0007 - Procedures: Notices 

Agency Responded 

HUMAN RESOLRCES 

Facility Services 

JO NCAC 3 J .2905 - Personal Hygiene Items 

10 NCAC 3W .0/01 - Slate Cert for Labs Conducting Pap Smears 
Agency Revised Rule 

JO NCAC 3W .0201 - State Cert of Screening Mammography Svcs 
Agency Revised Rule 

Individual and Family Support 

JO NCAC 42E .0905 - Personnel: Centers: Homes with Operator,' Staff 

Agency Responded 
JO NCAC 42E .0906 - Personnel: Day Care Homes:iStaff PersonlOp 

Agency Responded 
JO NCAC 42E .1108- Records 

Agency Revised Rule 
JO NCAC 42E .J 207 - Procedure 

Agency Responded 
JO NCAC 42Z .0604 - Staff Requirements 

Agency Responded 
JO NCAC 42Z .090 J - Procedure 

Agency Responded 

Mental Health: General 

JO NCAC I4S .0102 - Communication Rights 

Agency Responded 
JO NCAC I4S .0103 - Living Emironment 

Agency Responded 

INSURANCE 

Life and Health Division 

11 NCAC 12 .0507 - Fraternal Orders: Societies and Associations 
Agency Revised Rule 

J I NCAC 12 .0826 - Filing Requirements for Advertising 

.Agency Re\'ised Rule 
J I NCAC 12 .1202 - Definitions 

Agency Revised Rule 
J I NCAC 12 .1209 - Discrimination 

Agency Revised Rule 

LICENSrSG BOARDS AND COMMISSIONS 

Certified Public Accountant Examiners 



RRC Objection 

No Action 
Obj. Removed 
RRC Objection 
No Action 
Obj. Removed 



RRC Objection 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
No Action 
RRC Objection 
No Action 
RRC Objection 
Obj. Removed 
RRC Objection 
No Action 
RRC Objection 
No Action 
RRC Objection 
No A ction 



I2ll9i91 
01124:92 
02 1 20:92 
12119191 
01124192 
02120192 



W//7/9I 
0Ii24'92 
0/124. 92 
0/l24j92 
0JI24J92 



0Ji24i92 
02; 20,192 
0II24I92 
02/20192 
0/124! 92 
01124192 
0/124192 
02120192 
0/i24;92 
02:20192 
0/i24:92 
02 1 20 1 92 



ARRC Objection 91/9:9/ 

/0;/7 9/ 

ARRC Objection 9,/ 9, 9 J 

/0,/7;9/ 



RRC Objection 


/2 /9 9/ 


Obj. Removed 


0/l24i92 


RRC Objection 


0/'24;92 


Obj. Removed 


0/!24i92 


RRC Objection 


/2i/9 9/ 


Obj. Removed 


0/;24:92 


RRC Objection 


12,199/ 


Obj. Removed 


0/ 24 92 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



77 



RRC OBJECTIONS 



21 SCAC 8G .0313 - Firm Same RRC Objection 101 17191 

Agency Responded No Action 12119191 



7: 1 NOR TH CAROLINA R EG IS TER April 1, 1992 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals. Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



ISA NCAC 7 J .0301 - WHO IS ENTITLED TO A CONTESTED CASE HEARING 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 07J .0301(b) void as applied in Lucy R. Hanson, Stanley P. and Jean C. Szwed, Petitioners 
V. N .C. Department of Environment, Health, and Natural Resources, Division of Coastal Management, 
Respondent (91 EHR 0551, 91 EHR 0557). 

ISA NCAC 21 D .0S02(b)(2) -AVAILABILITY 

Robert Roosevelt Reilly Jr., Administrative Law Judge with the Office of Administrative Hearings, de- 
clared Rule 15A NCAC 21D .0802(b)(2) void as apphed in Wilson's Supermarket jfI2, Petitioner v. De- 
partment of Environment, Health, and Natural Resources, Respondent (91 EHR 0795). 

ISA NCAC 21D .080S - DECISION 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 21 D .0805 void as applied in Glenn E. Davis/ Davis Grocery, Petitioner v. N.C. Department 
of Environment, Health, and Natural Resources, Division of Maternal and Child Health, WIC Section, 
Respondent (91 EHR 0694). 



I 



7:1 NORTH CAROLINA REGISTER April 1, 1992 79 



CONTESTED CASE DECISIONS 



Tk 



his Section contains the full text of some of the more significant Administrative Law Judge 
decisions along with an index to all recent contested cases decisions which are filed under North 
Carolina's Administrative Procedure Act. Copies of the decisions listed in the index and not 
published are available upon request for a minimal charge by contacting the Office of A dminis- 
tratr\-e Hearings. (919) 733-2698. 



KEY TO CASE CODES 



ABC Alcoholic Beverage Control Com- 
mission 

BDA Board of Dental Examiners 

B\IE Board of Medical Examiners 

BMS Board of Mortuary' Science 

BOG Board of Geologists 

BON Board of Nursing 

BOO Board of Opticians 

CFA Commission for Auctioneers 

COM Department of Economic and Com- 
munity Development 

CPS Department of Crime Control and 

Public Safety 

CSE Child Support Enforcement 

DAG Department of Agriculture 

DCC Department of Community Colleges 

DCR Department of Cultural Resources 

DCS Distnbution Child Support 

DHR Department of Human Resources 

DOA Department of Administration 

DOJ Department of Justice 

DOL Department of Labor 

DSA Department of State Auditor 

DST Department of State Treasurer 



EDC 
EHR 

ESC 
HAF 

HRC 

IND 

INS 

LBC 

MLK 

NHA 

OAH 

OSP 

PHC 

POD 

SOS 

SPA 



WRC 



Department of Public Instruction 
Department of Environment, Health, 
and Natural Resources 
Employment Security Commission 
Hearing Aid Dealers and Fitters 
Board 

Human Relations Commission 
Independent Agencies 
Department of Insurance 
Licensing Board for Contractors 
Milk Commission 

Board of Nursing Home Administra- 
tors 

Office of Administrative Hearings 
Department of State Personnel 
Board of Plumbing and Heating 
Contractors 

Board of Podiatry' Examiners 
Department of Secretan' of State 
Board of Examiners of Speech and 
Language Pathologists and Audiol- 
ogists 
Wildlife Resources Commission 



CASE NAME 


CASE 
NLMBER 


ALJ 


FILED 
DATE 


lemando Demeco White 

V. 

DHR, CasweU Center 


89 OSP 0284 


\\'e^t 


01 10 92 


Cath\ Faye Barrow 

V. 

DLIR. Craven County Health Department 


89 DHR 0713 


Morgan 


03 09 92 


Kenneth W. White 

V. 

Employment Secunty Commission 


90 OSP 03^0 


Becton 


01 13 92 


Craig S. Fun,' 

V. 

Employment Security Commission 


90 OSP 0391 


Bccton 


01 13 92 


Jolene H. Johnson 

V. 

DHR. Di\ision of Medical Assistance 


90 DHR 0685 


Morgan 


02 2 1 92 



cSO 



7:1 NORTH CAROLINA REGISTER April I, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
D.\TE 


Sgt. Carl Edmunds 

V. 

DHR, Division of Social Services, CSE 


90 CSE 1135 


Nesnow 


02/04/92 


Kermit Linney 

V. 

Department of Correction 


90 OSP 1380 


Morrison 


02/12/92 


Jerry Odell Johnson 

V. 

SherifTs' Education & Training Standards Comm 


90DOJ 1411 


Morgan 


01/09/92 


Stoney W. & Darlene L. Thompson 

V. 

Department of Environment, Health, & Natural Resources 


91 EHR 0003 


West 


01/06/92 


Gloria Jones/ Medbill 

V. 

Children Special Health Services 


91 EHR 0142 


Morgan 


03/11/92 


Thomas Such 

V. 

EHR and William W. Cobey Jr. 


91 OSP 0202 


Becton 


02/20/92 


N.C. Human Relations Comm. on behalf of Deborah Allen 

V. 

Charles Watkins 


91 HRC0204 


Morrison 


03/17,92 


Cindy Gale Hyatt 

V. 

Department of Human Resources 


91 DHR 0215 


Morgan 


02/27/92 


Gliston L. .Morrisey 

V. 

Bd of Trustees Teachers' & St Emp Retirement Sys 


91 DST 0232 


West 


02, 03 92 


Anthony Caldwell 

V. 

Juvenile Evaluation Center 


91 OSP 0259 


Morgan 


03/12/92 


Kenneth R. Downs, Guardian of 
Mattie M. Greene 

V. 

Teachers' & St Emp Comp Major .Medical Plan 


91 DST 0261 


Gray 


02/20/92 


Deborah W. Clark 

V. 

DHR, Dorothea E)ix Hospital 


91 OSP 0297 


Nesnow 


01/16/92 


Wade R. Bolton 

V. 

DHR, Division of Social Ser\ices, CSE 


91 CSE 0312 


Marm 


01/14/92 


Betty L. Rader 

V. 

Teachers' & St Emp Major Medical Plan 


91 DST 0330 


Morgan 


01/10/92 


Marcia Carpenter 

V. 

LNC - Charlotte 


91 OSP 0346 


Mann 


03'12'92 



7:1 NORTH CAROLINA REGISTER April I, 1992 



SI 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NLMBER 


AU 


FILED 
DATE 


James .-Vrthur Lee 

V. 

NC Crime \'ictims Compensation Commission 


91 CPS0355 


Chess 


03 05 92 


Michael Darwin White 

V. 

Department of En\ironmcnt, Health, & Natural Resources 


91 OSP0413 


Morrison 


02, 14 92 


Curtis Wendell Bigelow 

V. 

CCPS, Division of State Highway Patrol 


91 OSP0418 


West 


03/10 92 


.■\lcoholic Beverage Control Commission 

V. 

Hilsinger Enterprises, Inc., t a The Watenn Hole 


91 ABC 0442 


Gra\ 


01/10 92 


Penny WTutfield 

V. 

Pitt County Mental Health Center 


91 OSP0465 


Gray 


0108 92 


Senior Citizens' Home Inc. 

V. 

DHR, Di\ision of Facility Ser\-ices, Licensure Section 


91 DHR 0467 


Gra\ 


02,18 92 


.-Vlcoholic Beverage Control Commission 

V. 

I;\erett Lee Williams Jr., t a Poor Boys Gameroom 


91 ABC 0531 


Morrison 


01/31 92 


Jonathan Russell McCra\-ey, t a Encore 

V. 

.Vlcoholic Beverage Control Commission 


91 ABC 0534 


.Morrison 


02,04 92 


Horace Britton Askew Jr. 

V. 

Shenffs' Education & Training Standards Comm 


91 DOJ0610 


Reilly 


01 22 92 


Roy L. Keever 

V. 

Department of Correction 


'^l OSP0615 


West 


02 26 92 


Larry Madison Chatman. t,a Larn's Convement Store 

V. 

.\lcoholic Beverage Control Commission 


(51 ABC 0626 


Gray 


02 20 92 


Cecil Leon Neal 

V. 

Department of Economic & Community Development 


91 OSP0648 


.Mann 


02 07 92 


D.\G. Food & Drug Protection Div, Pesticide Section 

V. 

D. Carrol] Vann 


91 DAG 0654 


.Morrison 


01, 15 92 


.Vlcoholic Be\erage Control Commission 

V. 

Kenneth Richard Cooper, t a Sih'ers 


91 ABC 0680 


Becton 


02 26 92 


Sarah I inda Hankms 

V. 

.Alcoholic Beverage Control Commission 


91 ABC 0688 


Mann 


02 27 92 


Keith Hull 

V. 

DHR - Di\ision of Medical Assistance 


Ql DHR 0707 


Chess 


02 27 92 



S2 



■1 NORTH CAROLINA REGISTER April I, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NLVIBER 


\U 


FILED 
DATE 


John E. Canup 

V. 

DHR, Division of Social Services, CSE 


91 CSE 0759 


ReiUy 


01/13/92 


Falcon Associates, Inc. 

V. 

Department of Environment, Health, & Natural Resources 


91 EHR 0767 
91 EHR 0768 


West 


01/06/92 


Michael F. Stone 

v. 

Bd of Trustees/ Local Gov't Emp Retirement Sys 


91 DST0771 


West 


02/24/92 


Ruben Gene McLean 

v. 
Alcoholic Beverage Control Commission 


91 ABC 0772 


Nesnow 


01/30/92 


Bobby McEachem 

V. 

Fayetteville State University 


91 OSP 0839 


Gray 


02/06/92 


Singletree, Inn 

v. 

EHR, and Stokes County Health Department 


91 EHR 0840 


Nesnow 


01/16/92 


Henry B. Bamhardt 

V. 

Mt Pleasant Vol Eire Dept, St Auditor/ Firemen's 
Rescue Squad Workers' Pension Fund 


91 DSA 0843 


Reilly 


01/29/92 


Mackey L. Hall 

V. 

DHR, Division of Social Services, CSE 


91 CSE 0854 


Reilly 


01/17/92 


Kay Long 

V. 

Department of Human Resources 


91 DHR 0873 


Reilly 


03/17/92 


/Vlcoholic Beverage Control Commission 

V. 

Mack Ray Chapman, t/a Ponderosa Lounge 


91 ABC 0887 


Morrison 


01/31/92 


Joseph \V. Devlin Jr., Johnson Brothers Carolina Dist 

V. 

Alcoholic Beverage Control Commission 


91 ABC 0890 


West 


02/11/92 


Ossie Beard 

V. 

EHNR & Wastewater Treatment Plant Certification Comm. 


91 EHR 0893 


Nesnow 


03/12/92 


Alcoholic Beverage Control Commission 

V. 

Trinity C. C, Inc., t a Trinity CoOege Cafe 


91 ABC 0915 


West 


02/11/92 


N.C. Alcoholic Beverage Control Commission 

V. 

Jessie Pendergraft Rigsbee, T/A Club 2000 


91 ABC 0919 


West 


03/12/92 


Alcoholic Beverage Control Commission 

V. 

Cedric Warren Edwards, t a Great, American Food Store 


91 ABC 0923 


Bccton 


02/26/92 



7:1 NORTH CAROLINA REGISTER April I, 1992 



83 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Department of Environment, Health, & Natural Resources 

V. 

Hull's Sandwich Shop, Andy Hull 


91 EHR 0936 


West 


01/09/92 


Betty Davis d/b/a ABC Academy 

V. 

DHR, Division of Facility Services, Child Day Care Section 


91 DHR 0955 


Morrison 


01/31/92 


Thomas J. Hailey 

V. 

EHR and Rockingham County Health Department 


91 EHR 0957 


Becton 


01/15/92 


Ronald Waverly Jackson 

V. 

EHR, Division of Maternal & Child Health, WIC Section 


91 EHR 0963 


Gray 


02/24,92 


Roy Shealey 

V. 

Victims Compensation Commission 


91 CPS 1002 


Morrison 


01/31/92 


Willie Brad Baldwin 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1020 


Reilly 


01/28/92 


Clinton Dawson 

V. 

N.C. Department of Transportation 


91 OSP 1021 


Mann 


03/05,-92 


Benjamin C. Dawson 

V. 

Department of Correction 


91 OSP 1025 


West 


02/18/92 


Paulette R. Smith 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1026 


Reilly 


02/27/92 


Scot Dawson 

V. 

Department of Labor 


91 DOL 1031 


West 


02/24/92 


Luis A. Rosario 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1046 


Morrison 


03/03,92 


William H. Hogsed 

v. 
DHR, Di\'ision of Social Services, CSE 


91 CSE 1070 


Nesnow 


03/16,92 


Donald M. Washington 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1078 


Morrison 


03/04,92 


Melvin L. Miller Sr. 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1084 


Morrison 


03/16,92 


Bobby G. Evans 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1094 


Reilly 


01,13 92 


William Louis Timmons 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1104 


Maim 


02,18 92 



84 



7:1 NORTH CAROLINA REGISTER April I, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


AU 


FILED 
DATE 


Richard E. Murray 

V. 

Department of Human Resources 


91 CSE 1134 


Reilly 


01/13/92 


Atlantic Enterprises, Inc. 

V. 

Department of Environment, Health, & Natural Resources 


91 EHR 1136 


Rcilly 


01/23/92 


Theresa M. Sparrow 

V. 

Criminal Justice Education & Training Standards Comm 


91 DOJ 1138 


.Mann 


02/04/92 


James A. Hinson 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1154 


Mann 


02/18/92 


George H. Parks Jr. 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1157 


Morrison 


01/27/92 


Adrian Chandler Harley 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1180 


Nesnow 


02/10/92 


Billy J. Hall 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1182 


Nesnow 


02/10/92 


Donaldson L. Wooten 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1189 


Reilly 


03/13,92 


William P. Reid 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1193 


Nesnow 


02/04/92 


Ronald G. Bolden 

v. 
DHR, Division of Social Services, CSE 


91 CSE 1208 


Gray 


02/26/92 


Wayne Phillip Irby 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1211 


Nesnow 


02/04 92 


Tony Hollingsworth 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1212 


Nesnow 


02/10/92 


Russell G. Ginn 

V. 

Department of Correction 


91 OSP 1224 


Rcilly 


02/14/92 


Angela McDonald .McDougald 

V. 

DHR, Division of Social Services, CSE 


91 CSE 1227 


Nesnow 


02/28/92 


Sering 0. Mbye 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1228 


.Mann 


03/11/92 


Stanford Earl Kern 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1255 


Nesnow 


02,04 92 



7:1 NORTH CAROLINA REGISTER April I, 1992 



85 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


James T. White 

V. 

DHR, Division of Social Sen'ices, CSE 


91 CSE 1271 


Gray 


02/27/92 


Ronald Brown and Regina Brown 

V. 

DHR, Division of Facility Services 


91 DHR 1278 


Becton 


02/25/92 


Samuel Armvvood 

V. 

David Brantley, Wayne County Clerk of Superior Court 


91 CSE 1285 


Reilly 


02/11/92 


Raymond Vaughan 

V. 

DHR, Division of Social Ser%ices, CSE 


91 CSE 1304 


Reilly 


03/09/92 


Stanley Wayne Gibbs 

v. 

Elizabeth City State University 


91 OSP 1318 


Gray 


01/14/92 


David Martin Strode 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1327 


Morgan 


03/19/92 


Steveason M. Bailey 

v. 

McDowell Technical Community College 


91 OSP 1353 


Morrison 


01/28/92 


Gary N. Rhoda 

V. 

Department of Correction 


91 OSP 1361 


Nesnow 


01/31/92 


Marc D. Walker 

V. 

CCPS, Division of State Highway Patrol 


91 OSP 1399 


Morrison 


03/16:92 


Serena Gaynor 

V. 

DHR, Division of Vocational Rehabilitation 


91 OSP 1403 


Gray 


03/02/92 


Charles R. WeUons II 

V. 

Department of Envirormient, Health, & Natural Resources 


91 EHR 1418 


West 


02 25, 92 


Charley Joe Milhgan 

V. 

Bd of Trustees Local Gov't Emp Retirement Sys 


91 DST 1424 


Gray 


02,27,92 


Roy Blalock, Deborah Eakms, John Gordon Wnght 

V. 

UNC - Chapel Hill 


91 OSP 1429 
91 OSP 1430 


Gray 


03,13/92 


New Bem-Cra\en County Board of Education, 
a Statutop,- Corporation of North Carolina 

V. 

The Honorable Harlan E. Boyles, State Treasurer, 

The Honorable Fred W. Talton, State Controller, 

The Honorable WUliam W. Cobey, Jr., Sec. of EHNR, 

Dr. George T. Everett, Dir., Div. of Envionmental Mgmt. 


92 EHR 0003 


Reilly 


03/13 92 


Cindy G. Bartlett 

v. 

Department of Correction 


92 OSP 0029 


Reilly 


03, 16 92 



S6 



7:1 NORTH CAROLINA REGISTER April I, 1992 



CONTESTED CASE DECISIONS 



CASE NAIVIE 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Kurt Hafner 

V. 

N.C. Retirement System et al. 


92 DST 0094 


Gray 


03/04/92 


Roy Blalock, Deborah Eakins, John Gordon Wright 

V. 

UNC - Chapel HiU 


92 OSP 0096 


Gray 


03/13/92 


Youth Focus, Inc. (MID # 239-23-0865T) 

V. 

DHR, Division of Medical Assistance 


92 DHR 0110 


Gray 


02/26/92 



7:1 NORTH CAROLINA REGISTER April I, 1992 



87 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA IN THE OFFICE OF 

ADMINISTRATU E HEARINGS 
COLNTV OF DURHAM 91 EHR 0142 



GLORIA. lONES/MEDBILL, ) 

Petitioner ) 



) RECOMMENDED DECISION: 

) ENTRY OF SUMMARY 

) JUDGMENT FOR RESPONDENT 



CHILDREN SPECIAL HEALTH SERVICES, ) 

Respondent ) 



The Petitioners filed a Petition for a Contested Case Hearing on February 14, 1991, alleging that the 
Respondent had denied claims for payment. In a Prehearing Statement filed on April 15, 1991, the 
Petitioners more specifically contended that the Respondent improperly denied payment for medical ser- 
vices which had been authorized, based upon the Respondent's erroneous determination that the claims 
for payment were not timely received by the Respondent. The Respondent asserted, in its Prehearing 
Statement filed on April 12, 1991, that it properly denied payment for claims for medical services sub- 
mitted by the Petitioners because these claims were not timely submitted to the Respondent. The Re- 
spondent also filed on April 12, 1991 the Respondent s .Motion for Summary Judgment or. In the 
.Alternative, to Dismiss, arguing in the motion that the Petitioners' claims for payment were not received 
by the Respondent within the time period which is designated by rule, that there is no genuine issue as 
to any material fact and that the Respondent therefore is entitled to a judgment as a matter of law. The 
Respondent contends, as an altemativ'e position, that this contested case should be dismissed because the 
Petitioners lack standing to institute it. The presiding administrative law judge issued a Request for Re- 
sponse to .Motion on April 15, 1991. In the Petitioner's Response to Respondent's Motion for Summary 
Judgment filed on April 26, 1991, the Petitioners objected to the Respondent's motion. The undersigned 
administrative law judge does not deem oral arguments by the parties concerning this motion to be nec- 
essary for its disposition pursuant to the discretion accorded in Title 26, Chapter 3, Section .0015(b) of 
the North Carolina Administrative Code. 

CONCLUSIONS OF LAW 

North Carolina General Statutes Section IA-1, Rule 56(b) states, in pertinent part: 

"A party against whom a claim. ..is asserted. ..may, at any time, move with or without supporting 
affidavits for a summary judgment in his favor as to aU or any part thereof." 

Section (c) of this civil procedure rule states, again in pertinent part: 

"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to 
interrogatories, and admissions on fde, together with the alTidavits, if any, show that there is no 
genuine issue as to any material fact and that any party is entitled to a judgment as a matter of 
law." 

The Petitioners have alleged that medical services were rendered to an infant patient named Josiah 
Clapp between the December 12, 1989 date of his birth and the April 10, 1989 date of his discharge from 
Moses Cone Hospital in Greensboro, North CaroUna. The Petitioners admit in their Prehearing State- 
ment that they do not ha\e sufTicient information to identify the dates of their requests for authorization 
for payment from the Respondent for the aforementioned medical services. However, the Petitioners do 
state that the Respondent signed authorizations for payment on August 2, 1990, .Moses Cone Hospital 
recei\'ed these authorizations on or about August 8, 1990, and the Petitioners receiv'ed these authori- 
zations from the hospital on August 13, 1990. On September 27, 1990, the Petitioners sent medical claims 
statements which totalled $12,251.00 to the Respondent, which received them on or about October 4, 
1990. The Petitioners, on December 5. 1990, received a denial of payment of these claims from the Re- 
spondent dated November 28, 1990. 



SS 7:1 NORTH CAROLINA REGISTER April 1, 1992 



CONTESTED CASE DECISIONS 



The Respondent has alleged that it approved authorization requests on August 2, 1990 from Moses 
Cone Hospital for inpatient care provided to the infant Clapp between January 9, 1990 and April 5, 1990. 
Claims for payment for medical services were submitted by the Petitioners and received by the Re- 
spondent on October 4, 1990. In a report dated November 28, 1990 as alleged by the Respondent, the 
Respondent denied the Petitioners' claims for payment on the basis that the claims were received by the 
Respondent after the elapse of the time periods addressed in Title 15A, Chapter 24A, Section .0302(5) 
of the North Carolina Administrative Code. 

15A NCAC 24A .0302, with its subsections, contains the information concerning authorizations and 
claims processing time frames which are pertinent to this contested case. 15A NCAC 24A .0302(1) states 
that "[a]n Authorization Request must be received by the Department within 90 days after the date of 
service or it will be denied." In their Prehearing Statement, the Petitioners indicate that the dates of re- 
quests for authorization may have been as early as February 16, 1990 and as late as May 7, 1990. 

These dates are noteworthy in light of the Petitioners' allegation that the Respondent did not comply 
with 15A NCAC 24A .0302(2), which states that "|t|he Department shall respond to an Authorization 
Request within 45 days after receipt." The authorizations at issue were signed by the Respondent on 
August 2, 1990--167 days after the earliest speculated authorization request date and 87 days after the 
latest speculated authorization request date. The Petitioners have not provided sufficient information 
beyond speculation in their pleadings or in any other documents, to show that the Respondent failed to 
comply with the time deadhnes established in 24A NCAC .0302(2). Even assuming, arguendo, that the 
Respondent did fail to comply with this rule, such an omission does not affect the resolution of the ulti- 
mate issue in this contested case concerning the Respondent's denial of the Petitioners' claims for pay- 
ment pursuant to I5A NCAC 24A .0302(5) based on the Respondent's determination that the Petitioners' 
claims were untimely. 

The provision of 15A NCAC 24A .0302(5) upon which the Respondent justifies its denial of the 
Petitioners' cliams for payment states: 

"A claim for payment must be received by the Department [of Environment, Health, and Natural 
Resources] within 180 days after the date of service or within 45 days after the date of authorization 
approval, whichever is later, or the claim wiU be denied." 

The documents supporting the Respondent's Motion for Summar>' Judgment or, in the Altemative, 
to Dismiss reflect that the last date of the provision of medical services to the infant Clapp was April 5, 
1990-the date of the child's discharge from the hospital. Under the time calculation formula relating to 
a claim for payment being received by the Respondent within 180 days after the discharge date of service, 
the Respondent must have received the claim by October 1, 1990. Under the time calculation formula 
relating to a claim for payment being received by the Respondent within 45 days after the August 2, 1990 
date of authorization approval, the Respondent must have received the claims by September 16, 1990. 
Since October 1, 1990 is the later of the two dates determined under the time calculation formula con- 
tained in 15A NCAC 24A .0302(5), the Petitioners' claims for payment must have been received by this 
date or the claims would be denied. 

When the language of a statute is clear and unambiguous, it must be given effect and its clear 
meaning may not be evaded by an administrative body or a court under the guise of construction. State 
ex rel Utilhies Commission v. Edmisten, 291 N.C. 451, 232 S.E.2d 184(1977). In applying this standard 
for proper legal interpretation to the rule provision at issue here, the undersigned administrative law judge 
fmds that the clear and unambiguous meaning of 15A NCAC 24A .0302(5) indicates that the Petitioners' 
claims for payment must have been received by October 1, 1990 or the claims would be denied. Since 
the Respondent received the claims for payment on October 4, 1990 as shown by the summary judgment 
documents, the Respondent properly denied the Petitioners' claims. 

The pleadings, affidavits and supporting documents show that there is no genuine issue as to any 
material fact concerning the pertinent dates in the time calculation formula established in 15A NCAC 24A 
.0302(5). Since the Respondent did not receive the Petitioners' claims for payment in a timely manner, 
the Respondent is entitled to a judgment as a matter of law. 



7:1 NORTH CAROLINA REGISTER April I, 1992 S9 



CONTESTED CASE DECISIONS 



RECOMMENDATION 



It is recommended that summarv^ judgment be entered in favor of the Respondent because there is 
no genuine issue as to any material fact concerning the tardiness of the Respondent's receipt of the 
Petitioners' claims for payment, thus entitling the Respondent to a judgment as a matter of law. 

ORDER 

It is hereby ordered that the agency serve a copy of the fmaJ decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General 
Statute 150B-36(b). 

NOTICE 

The agency making the fmal decision in this contested case is required to give each party an oppor- 
tunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the fmal decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the fmal decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the fmal decision in this contested case is the North Carohna Department 
of Environment, Health, and Natural Resources. 

This the 1 1th day of March, 1992. 



Michael Ri\ers Morgan 
Administrative Law Judge 



90 7:1 NORTH CAROLINA REGISTER April I, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

91 HRC0204 



NORTH CAROLINA HUMAN RELATIONS 
COMMISSION on behalf of 
DEBORAH ALLEN, 
Petitioner 



CHARLES WATKINS, 

Respondent 



PROPOSAL FOR DECISION 



This matter was heard in Raleigh, North Carolina, on September 18, 1991, before Senior Adminis- 
trative Law Judge Fred G. Morrison, Jr. 

APPEARANCES 

Daniel D. Addison, for Petitioner. 

Thomas J. Farris and Charles Gaddy, for Respondent. 

ISSUES 

1. Whether the Respondent made a statement indicating intent to discriminate, because of race, with 
respect to a real estate transaction* 

2. Whether the Respondent discriminated, because of race, in the terms and conditions of a real estate 
transaction* 

3. Whether the Petitioner is entitled to an award of compensatory damages, and if so, the amount* 

4. Whether to assess a civil penalty against the Respondent, and if so, the amount* 

STATUTES IN ISSUES 

G.S. 41A-4(a)(6) 

G.S. 41A-4(a) (2) 

G.S. 41A-7(1) 

FINDINGS OF FACT 

1. For twenty years prior to, and during the incidents of this case, Respondent Charles Watkins 
(hereinafter "Respondent") was in possession, and was the manager, of Watkins Mobile Home 
Park in Wake County, N. C. 



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91 



CONTESTED CASE DECISIONS 



2. From September 1987 to August 1990, Petitioner Deborah Allen (hereinafter "Complainant"), 
lived in a mobile home in Watkins Mobile Home Park. The Complainant, who is white, owned 
her mobile home, and she rented the lot from the Respondent. 

3. In January, 1990, the Complainant advertised her mobile home for sale. Har\'ey and Mildred 
Dewberry', who are black, responded to the Complainant's advertisement. The Dewberry's told 
the Complainant they were interested in buying her mobile home, leaving it on the lot in Watkins 
Mobile Home Park, and having their daughter live in the mobile home. Ms. Allen told the 
Dewberry's to contact the Respondent about renting the mobile home lot in Watkins Mobile 
Home Park. 

4. In January 1990, the Dewbenys spoke with the Respondent and informed him that they were in- 
terested in buying the Complainant's mobile home and leaving it on her lot in Watkins Mobile 
Home Park. 

5. yVfter the Dewbenys informed the Respondent of their interest in renting the Complainant's lot in 
Watkins .Mobile Home Park, the Respondent spoke with the Complainant. The Respondent told 
the Complainant that she was putting him in a terrible position because once one black came to 
his mobile home park, other blacks would come. The Complainant asked the Respondent if he 
would rent to the Dewbenys. His response was that he would have to think about it. 

6. A few days after the conversation described in paragraph 5, above, the Complainant had heard 
nothing from the Respondent concerning the Dewberry's' inquiry about renting the lot. The 
Complainant contacted the Respondent and again asked if he would rent the lot to the Dewberrys. 
The Respondent said he had not made a decision yet. The Respondent said that the Complainant 
would need to get character and credit references from the Dewberr>s and that he would let her 
know about whether he would rent to them. 

7. It was not the Respondent's customary practice to ask prospective white tenants to submit char- 
acter and credit references as a precondition to moving into Watkins Mobile Home Park. The 
application asks for the name of the tenant's employer. The Respondent did not ask the 
Complainant to submit any character or credit references when she applied for tenancy in the park. 
Likewise, none of the other tenants who testified stated that the Respondent asked them for 
character or credit references. The Respondent claims that he obtains some of tl-us reference in- 
formation, without specifically asking for it, in casual con\ersations with prospective tenants or in 
conversations with people who know them. 

8. In the 20 years Watkins Mobile Home Park has existed, the Respondent has never had a black 
tenant. When the Dewberrys inquired about renting a lot in the park, the Respondent did not 
invite them to come to his home to meet him or to complete an application. Instead, as a pre- 
condition to deciding whether he would rent to them at all, the Respondent asked the 
Complainant to obtain character and credit references from the Dewberrys. 

9. .After the Respondent told the Complainant to do so, the Complainant contacted the Dewberrys 
and informed them that the Respondent wanted them to submit character and credit references if 
they wanted to be considered for a rental lot in the park. The Dewberrys informed the 
Complainant that they had decided not to purchase her mobile home. The Complainant fmaUy 
sold her mobile home to another purchaser in August 1990. 

10. The Complainant testified that the Respondent's above-described actions caused her embarrass- 
ment and emotional distress. She stated she felt discrimination was wrong, and that she was an- 
gered by the Respondent's actions. She also testified she was embarrassed by having to tell the 
Dewberrys they would need to submit references, knowing she has not been required to do so. 
The Complainant testified that the distrees caused by these incidents caused her an.\iety, depression 
and sleepless nights. 



92 7:1 NORTH CAROLINA REGISTER April 1, 1992 



CONTESTED CASE DECISIONS 



11. At the time the Respondent took the above-described actions, he was aware of the State Fair 
Housing Act and its prohibition against racial discrimination in the conditions of a real estate 
transaction. 



CONCH SIONS OF LAW 

G.S. 41A-4(a) (6) prohibits a person from making a statement which indicates directly or indirectly 
an intent to discriminate on the basis of race in a real estate transaction. In this case, after the 
Complainant referred a black family to the Respondent to inquire about renting a lot, the Re- 
spondent told the Complainant that she had put him in a terrible position because once one black 
comes, others will come. This statement indicated the Respxjndent's racially discriminatory intent 
regarding the transaction, and the statement was a violation of G.S. 41A-4(a) (6). 

G.S. 41A-4(a) (2) prohibits discrimination because of race in the terms, conditions, and privileges 
of a real estate transaction. This provision is violated when a landlord requires black rental ap- 
pUcants to submit certain information or undergo certain background checks which are not re- 
quired of all white applicants. This unequal application of rental criteria based on race is, by itself, 
a violation of the law. An applicant who is required to meet extra rental qualifications because 
of race need not be denied a rental to establish unlawful discrinination in the terms and conditions 
of the rental transaction. 

In this case, the Respondent required a black family to submit credit and character references be- 
fore he would consider renting them a lot in his mobile home park. The Respondent did not 
regularly request or require such references from white lot applicants. In thus requiring the black 
family, because of race, to submit references when he did not regularly require such references from 
white applicants, the Respondent discriminated in the terms and conditions of a real estate trans- 
action in violation of G.S. 41A-4(a) (2). 

The Complainant has standing to challenge the Respondent's unlawful discriminatory housing 
practices. G.S. 41A-7(a) states that a claim of a violation of the State Fair Housing Act may be 
made by "Any person who claims to have been injured by an unlawful discriminatory housing 
practice". 

The Respondent's motion to dismiss this action pursuant to Rule 12(b) (6) of the North Carolina 
Rules of Civil Procedure for failure to state a claim upon which relief can be granted is hereby 
denied. 



Based on the foregoing the undersigned makes the following: 

PROPOSAL FOR DKCISION 

The North Carolina Human Relations Commission will make the fmal decision in this contested 
case. It is proposed that the Commission assess a civil penalty against the Respondent in the amount 
of $1,000 and order him to pay $1,000 in compensator)' damages to the Complainant. 

NOTICE 

The agency making the fmal decision in this contested case is required to give each party an oppor- 
tunity to tile exceptions and proposed fmdings of fact and to present oral and written arguments to the 
agency. G.S. 150B-40(e). 

A copy of the fmal agency decision or order shall be served upon each party personally or by certified 
mail addressed to the party at the latest address given by the party to the agency and a copy shall be 



7:1 NORTH CAROLINA REGISTER Apiill, 1992 93 



CONTESTED CASE DECISIONS 



furnished to his attorney of record. G.S. 150B-42(a). It is requested that the agency furnish a copy to 
the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Human 
Relations Commission. 



This the 17th day of March, 1992. 



Fred G. Morrison, Jr. 

Senior Administrative Law Judge 



94 7:1 NORTH CAROLINA REGISTER April I, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COLNTY OF ORANGE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

91 OSP 1429 

91 OSP 1430 

92 OSP 0096 



ROY BLALOCK, 
DEBORAH EAKINS, and 
JOHN GORDON WRIGHT, 

Petitioners, 



UNIVERSITY OF NORTH CAROLINA 
AT CHAPEL HILL, 

Respondent. 



FINAL DECISION 

DISMISSING CONTESTED CASES 

FOR LACK OF JURISDICTION 



The three above captioned contested cases were consoUdated in the Office of Administrative Hearings 
on February 17, 1992. Fach case poses a common legal question as to whether the Office of Adminis- 
trative Hearings has subject matter jurisdiction in cases where the only question in issue is whether the 
Petitioner should be awarded reasonable attorneys fees following resolution, at the agency level, of a 
successful appeal brought by the employee following the employee's dismissal. 

In case 91 OSP 1429, Petitioner Blalock was dismissed from employment by Respondent in July, 
1991. Following his internal grievance proceedings, Respondent reinstated him with back pay on No- 
vember 25, 1991. Respondent declined to award Petitioner Blalock attorney's fees. 

In case 91 OSP 1430, Petitioner Eakins was dismissed from employment by Respondent on June 3, 
1991. Following her internal grievance proceedings. Respondent reinstated her with back pay on No- 
vember 15, 1991. Respondent declined to award Petitioner Eakins attorney's fees. 

In case 92 OSP 0096, Petitioner Wright was dismissed from employment by Respondent in July, 
1991. Following his internal grievance proceedings. Respondent reinstated him with back pay on No- 
vember 25, 1991. Respondent declined to award Petitioner Wriglit attorney's fees. 

A telephone scheduling conference in the consolidated cases was conducted by Beecher R. Gray, 
administrative law judge, on February 18, 1992. Alan McSurely, Esq. appeared for Petitioners Blalock, 
Eakins, and Wright. Barbara A. Shaw, Esq. appeared for Respondent University of North Carohna at 
Chapel Hill. During the conference. Respondent noted that it had filed, or intended to tile, motions to 
dismiss in all three cases. It was agreed and determined that Petitioners would have thirteen (13) da>'s 
following the tiling of the last motion to dismiss in which to respond to any or all motions to dismiss. 
Respondent filed the last motion to dismiss on February 20, 1992 in case 92 OSP 0096. Petitioners ha\e 
not filed a response to any motion. 

Having considered the motions to dismiss, the record in each case, and the applicable statutes and 
rules 1 tind that: 

1. G.S. 126-4(11) grants the State Personnel Commission the authority to determine an award of at- 
torney's fees following reinstatement or an award of back pay to a state employee; 

2. the State Personnel Commission has promulgated rules which provide: 
Attorney's fees may be awarded by the commission only in the following situations: 

(1) the grievant is rein.stated to the same or similar position from either a demotion or a dismissal; 

(2) the grievant is awarded back pay from cither a demotion or a dismissal, without regard to whether 
the grievant has been reinstated; 



7:1 NORTH CAROLINA REGISTER April I, 1992 



95 



CONTESTED CASE DECISIONS 



(3) the grievant is determined, by the commission or by the agency's intemal grievance procedure, to 

have been discriminated against in violation of G.S. 126-16; 
(4j the grievant is awarded back pay as the result of a successful grievance alleging a violation of G.S. 

126-7.1; 
(5) any combination of the above situations. 

Attorney's fees may be awarded when any of the above situations occur, either within the agency 
intemal grie\'ance procedure or in an appeal to the State Personnel Commission. 
N.C. Admm. Code tit. 25, r. IB .0414 (August, 1991); 

3. each Petitioner fded a contested case petition in the Office of Administrative Hearings contesting only 
the failure of Respondent to award attorney's fees in each of the three cases following reinstatement 
of the employees. 

CONCH SIONS OF L.AW 

1. An appeal from an intemal agency grievance proceeding which reinstated a State employee with back 
pay but declined to award attorney's fees does not constitute a contested case under Chapter 150B 
of the General Statutes of North Carolina because such denial does not affect a right, dutv, or priv- 
ilege within the contemplation of G.S. 1508-2(2). G.S. 1508-22, or G.S. 1508-23. Under G.S. 
126-4(1 1) and N.C. Admin. Code tit. 25, r. IB .0414, whether to award attomey's fees in cases where 
a state employee is reinstated or receives back pay rests in the sound discretion of the State Personnel 
Commission. 

2. Under G.S. 126-37, the State Persormel Commission would have had jurisdiction in each of these 
matters if the cases had progressed beyond the internal agency grievance level because each case in- 
cluded a dismissal from employment, followed by reinstatement and back pay: the State Persormel 
Commission is authorized by G.S. 126-4(11) and N.C. Admin. Code tit. 25, r. IB .0414 (August, 
1991) to receive direct requests from Petitioners for review of Petitioners' requests for attomey's fees. 

3. Subject matter jurisdiction in the Office of Administrative Hearings in personnel matters arises from 
Chapter 1 26 of the General Statutes. Batten v^ North Carolina Department of Correction, 326 N.C. 
338, 389 S.E.2d 35 (1990). Petitioners have not been granted a right to attomey's fees by Chapter 
126, only the opportunity to seek an order from the State Personnel Commission awarding attomey's 
fees in proper cases. 

For the foregoine reasons, Respondent's Motions to Dismiss should be, and the same hereby are, 
ALLOWED. The^consolidated petitions in 91 OSP 1429, 91 OSP 1430, and 92 OSP 0096 are DISMISSED 
for lack of subject matter jurisdiction in the Office of Administrative Hearings. 

NOTICE 

This final decision is subject to judicial re\ iew in the Superior Court Division of the North Carolina 
General Court of Justice in accordance with the pro\isions of G.S. Chapter 150B, Article 4, which require 
that an appeal be fded in the superior court within thirty (30) days following ser\ice upon the person of 
a written copy of the fmal decision. 

This the 13th dav of March, 1992. 



Beecher R. Gray 
Administrative Uaw Judge 



96 7:1 NORTH CAROLINA REGISTER April 1, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF CRAVEN 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

92 EIIR 0003 



NEW BERN-CRAVEN COUNTY BOARD 
OF EDUCATION, a Statutory Corporation 
of North Carolina, 

Petitioner 



THE HONORABLE HARLAN E. BOYLES, 
State Treasurer, THE HONORABLE 
FRED W. TALTON, State Controller, 
THE HONORABLE WILLIAM W. COBEY, JR., 
Secretary of the Department of Environment, 
Health, and Natural Resources, and 
DR. GEORGE T. EVERETT, Director of 
the Division of Environmental Management, 
Respondents 



FINAL DECISION 



The verified Petition, filed January 2, 1992, alleged: 

7. 

On or about October 17, 1991, Weyerhaeuser Company, a Corporation of Washington, with an 
office and place of business in Craven County, North Carolina, paid or caused to (be) paid to the 
North Carolina Division of Environmental Management and/or to the General Fund of the State 
of North Carolina, a civil fine, penalty or forfeiture, totaling $926,000.00 for violations of North 
Carolina State laws and regulations designed to protect the air quality and prevent air pollution. 

8. 

That said fine, penalty or forfeiture arose out of notices of violations to Weyerhaeuser Company 
issued by the Division of Environmental Management, identifying violations of one or more laws 
or regulations of the North Carolina Administrative Code, occurring in Craven County; and the 
Division of Environmental ."Vlanagement issued an assessment or assessments of civil penalties for 
said violations of law pursuant to G.S. 143, Article 21B and particularly G.S. 143-215.1 14, in case 
number 91-EHR-0644, Craven County, North Carolina. 



That said sum of $926,000.00 paid by Weyerhaeuser Company to the State of North Carolina, as 
aforesaid, is a fme, penalty or forfeiture within the context, meaning and control of Article IX, 
Section 7, of the North Carolina Constitution, which provides that said payment of $926,000.00 
shall belong to and remain in Craven County and shall be faithfully appropriated and used exclu- 
sively for maintaining free public schools. 

10. 

The Petitioner has demanded payment of the $926,000.00 from all of the Respondents named 
herein; and the Respondents have failed and refused to pay the same, after demand, to or on behalf 
of the Petitioner. 

II. 



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97 



CONTESTED CASE DECISIONS 



Respondents, as Petitioner is informed, believes and therefore alleges, contend that the said monies 
paid by Weyerhaeuser Company to the State are not within the purview of .Article IX, Section 7, 
of the Constitution; and, therefore, refuse to voluntarily remit the monies to Craven County for the 
exclusive use of the pubhc schools. 

12. 

Respondents continue to hold and refuse to surrender the monies which Petitioner verily believes 
it is entitled to for free public schools pursuant to Article IX, Section 7. The Treasurer, who has 
custody of said monies, refuses to surrender the same to Petitioner, claiming lack of authority to 
do so without a warrant authorized by the Secretary of the Department of Environment, Health, 
and Natural Resources, and issued by the Controller, per G.S. 147-68(a) and (b), G.S. 147-4 and 
G.S. 143-3.2. Petitioner is informed, believes and therefore alleges that the Secretarv' and the Di- 
rector refuse to authorize a warrant for payment to Craven County for the use and benefit of the 
Petitioner, based on the contention that the funds belong to the account of and for the use and 
benefit of the Department of Environment, Health, and Natural Resources or the Division of En- 
vironmental Management, or both, and are not within the reach of Article IX, Section 7 of the 
Constitution. Petitioner contends that the subject funds are controlled by this constitutional sec- 
tion: and the constitution preempts the effect of the above cited statutes and or the possession and 
control of Respondents. Litigation is, therefore, unavoidable. 

13. 

Petitioner, therefore, has attempted to resolve this dispute through informal procedures, i.e., by 
demand upon and correspondence with the Respondents; and the Attorney General of North 
Carolina, acting for said agencies-respondents, has issued correspondence to Petitioner effectively 
denying any liability of said Respondent-agencies to pay the same and declaring that their inability 
to remit the subject monies to Petitioner, said correspondence from the Attomev General being 
dated November 18, 1991. 

Therefore, although Petitioner has attempted to reach an informal resolution with Respondents to 
this dispute, the parties Respondent cannot, or will not, agree to a resolution through informal 
procedures; and this matter has become a "contested case" within the purview of G.S. 150B, Article 
3; and Petitioner commences this admimstrative proceeding to determine and establish its rights to 
the subject funds. 

14. 

Consequently, the Respondents have deprived Petitioner of property and othervsise substantially 
prejudice Petitioner's rights and, in doing so, have exceeded their authority and jurisdiction, acted 
erroneously, and have failed to act as required by law, especially in accordance with the mandate 
of Article 9, Section 7, of the North Carolma Constitution. 

After the fding of the Petition, the contested case was assigned to the undersigned administrative law 
judge. The undersigned issued an Order for Prehearing Statements. In response, aU parties fded unveri- 
fied Prehearing Statements. In their Prehearing Statement, the respondents mo\'ed to dismiss "pursuant 
to Rule 12b (sic) of the North Carolina Rules of Civil Procedure because the Office of Administrative 
Hearings lacks jurisdiction over the subject matter of this dispute and because the petition fads to state a 
claim upon which the relief sought can be granted." Memoranda were fded by the parties. Oral argu- 
ments were heard on March 5, 1992, in Raleigh. 

II. 

The Respondents' Memorandum of I^w in Support of Motion to Dismiss contained se\eral argu- 
ments supporting their position that the OtTice of Administrative Hearings lacks subject matter jurisdic- 
tion to hear this contested case and that the petition failed to state a claim upon which rehef can be 
granted. 



98 7: 1 NOR TH CA ROLINA R EG IS TER April I, 1992 



CONTESTED CASE DECISIONS 



.■\lthough matters outside the pleadings may be considered and weighed by the court in determining 
the existence of jurisdiction over the subject matter [Tart \\ Walker, 38 NC App 500, 248 SE 2d 736 
(1978)1, no affidavits, stipulations, deposition transcripts or sworn testimony were presented to the 
undersigned. Therefore, the Motion to Dismiss for lack of subject matter jurisdiction, like the Motion 
to Dismiss for failure to state a claim, must be determined solely with reference to the verified Petition. 

The respondents first contended that Article 3 of G.S. Chapter 150B is procedural only and therefore 
does not confer substantive rights. Batten v. Department of Correction, 326 NC 338, 389 SE 2d 35 (1990) 
was cited. However, the Department of Correction was and is exempted from the provisions of Article 
3 and therefore that case was necessarily decided by construing only G.S. Chapter 126. References to 
Article 3 in Batten are therefore obiter dicta. As noted in Matter of Appeal from Civil Penalty, 324 XC 
373, 379 SE 2d 30 (1989), "mechanical application of (a rule in a prior case) ignores the progress made 
in the way the role of administrative agencies is regarded." ( Id^ at 381, 35) A March 12, 1991, Order 
in Scott \\ Board of Trustees (90 DST 1426) and a February 14, 1992 Final Decision in Giim v^ De- 
partment of Correction (91 OSP 1224) are attached and are incorporated herein. They contain further 
discussion of Batten. 

The Department of Correction was and is exempted from Article 3. However, the State Treasurer, 
the State Controller, the Secretary of Environment, Health, and Natural Resources, and the Director of 
Environmental Management are subject to the Administrative Procedure Act. G.S. 150B-l(b) declares 
that "(t)his Chapter confers procedural rights." In addition, G.S. 150B-l(e) declares that "(t)he contested 
case provisions (Article 3 and 4) apply to all agencies and all proceedings not expressly exempted from 
the Chapter." "Agency" includes "an officer in the executive branch of the go\emment of this State." 
See G.S. 150B-2(1). The named respondents are officers and are included in the defmition of "agency." 
They are not expressly exempted from Article 3 and 4. Article 3 contains G.S. 150B-23. It provides that 
"(a) contested case shall be commenced by filing a petition with the Office of Administrative Hearings 
and, except as provided in Article 3A of this Chapter, shall be conducted by that Office." Therefore, the 
Administrative Procedure Act confers not only procedural rights but also determines which agencies are 
subject to the jurisdiction of the Office of Administrative Hearings. 

G.S. 150B-23(a) specifies the content of a petition: 

A petition shall be signed by a party or a representati\e of a party and, if filed by a party other 
than an agency, shall state facts tending to establish that the agency named as the respondent 
has depri\ed the petitioner of property, has ordered the petitioner to pay a fine or civil penalty, 
or has otherwise substantially prejudiced the petitioner's rights and that the agency; 

(1) Exceeded its authority or jurisdiction; 

(2) Acted erroneously; 

(3) Failed to use proper procedure; 

(4) Acted arbitrarily or capriously; or 

(5) Failed to act as required by law or rule. 

Although the respondents analyzed the above statutory' language in respect to their lack of subject 
matter jurisdiction argument, the undersigned belie\es that this language is relevant to determining 
whether the petition states a claim upon which relief can be granted. The subject matter jurisdiction issue 
is resolved by determining that the named respondents are included within the definition of "agency" 
under G.S. 150B-l(e) and are not expressly exempted by that subsection. (The 60 days time limitation in 
G.S. 150B-23(f) is also a jurisdictional provision.) 

The Petition named four respondents. The Petition alleged that Weyerhaeuser Company paid a civil 
fine, penahy or forfeiture, totahng $926,000, to the Division of Environmental Management. The Peti- 
tion alleged that the sum belonged to the petitioner pursuant to Article IX, Section 7, of the North 
Carolina Constitution. The Petition alleged that the petitioner made demand for payment on the re- 
spondents and they refused to pay the amount. The Petition further alleged that the Treasurer has cus- 
tody of the amount and refused payment due to the lack of a warrant, that the Secretary' and the Director 



7:1 NORTH CAROLINA REGISTER April I, 1992 99 



CONTESTED CASE DECISIONS 



refused to authorize a warrant, that the Controller was required to issue any warrant, and that no warrant 
has been issued. 

If the allegations contained in the Petition contain merit, the Petition has alleged that the respondents 
have depri\ed the petitioner of propert\'. an identifiable substantive right, i.e. the right to $926,000. by 
taking and possessing money which belonged to the petitioner. The Petition has also alleged that, by 
taking and possessing the money, the respondents have failed to act as required by law, i.e. Article IX, 
Section 7. This Section is the source of the petitioner's substantive right. The Constitution, statutes and 
rules constitute the law of this State. 



One of the respondents' arguments was that the petitioner had not made any demand upon the re- 
spondents other than the State Treasurer. However, the deprivation of property occurred by the taking 
and possessing of the money; no demand is required. Furthermore, the Petition alleged that demand was 
made on all respondents. 

The respondents argued in their Memorandum that the OtTice of Administrative Hearings cannot 
issue a declarator,' ruling pursuant to G.S. 150B-4. The undersigned agrees. The Petition requested 
"(fjor such other and further relief as the court may seem (sic) just and proper." In the administrative 
law context, the proper relief is the issuance of a recommended decision, containing findings of fact and 
conclusions of law, pursuant to G.S. 150B-34. 

The respondents also contended that an administrative law judge lacks the authority to delcare a 
statute unconstitutional. The undersigned agrees. However, under Article VI, Section 7 of the Consti- 
tution of North Carolina, a person elected or appointed to office, such as the respondents and the ad- 
ministrative law judge, takes an oath to "support and maintain" the United States and North Carolina 
Constitutions. In BaUey v. State of North CaroUna, 330 NC 227, 410 SE 2d 462 (1991), the controlling 
statute, Chapter 792, had "not yet been examined either by federal courts or by the appellate courts of 
this state." ( Id. at 224, 472) Therefore, it was not the responsibility of the Secretar>' of Revenue or State 
Treasurer "to judge the constitutionality of the statutes authorizing and regulating their departmental 
functions." ( Id^ at 225, 473) However, if the controlling statutes in this case are consistent with .Article 
IX, Section 7, the respondents and the administrative law judge must support and maintain both the 
Constitution and statutes of this State as they have swom to do. In addition to this executive responsi- 
bility, the Supreme Court recognized in Matter of ^Appeal from Civil Penalty, supra, that some "discre- 
tionan,' judicial authority may be granted to an agency when reasonably necessar>' to accompUsh the 
agency's purpose." ( Id. at 379, 34) This limited judicial authority has been granted to the administrative 
law judge in making recommended decisions pursuant to G.S. 1503-34 and to the agencies in making a 
final decision pursuant to G.S. 150B-36. 

III. 

The test on a motion to dismiss for failure to state a claim upon which relief can be granted 
is whether the pleading is legally sufficient (Citations omitted.) A complamt may be dismissed 
on motion filed under Rule 12(b)(6) if it is clearly without merit; such lack of merit may 
consist of an absence of law to support a claim of the sort made, absence of fact sufficient to 
make a good claim, or the disclosure of some fact which will necessarily defeat the claim. 
ShofTner Indistries, Inc. v. W.B. L.lovd Construction Company. 42 NC App 259, 263, 257 SE 
2d 50, 54(1979). 

The task is to determine whether the enabling statutes pertaining to the respondents and .-Vrticle IX, 
Section 7, as mterprcted b>' the appellate courts, support the petitioner's claim. 

A. 

G.S. 143-215.1 14.A authorizes the Sccretar)' of En\'ironment, Health, and Natural Resources to assess 
a civil penalty for violation of an air pollution law or rule. The statute requires payment within 30 days 
after notice of assessment has been ser%'ed on the violator. This power may be delegated to the Director 



100 7:1 NORTH CAROLINA REGISTER April!, 1992 



CONTESTED CASE DECISIONS 



of Environmental Management. The statute is silent about to whom payment shall be made and to 
whose account the payment shall be deposited. The Petition contended that the $926,000 was incorrectly 
paid to the Division of Environmental Management. 

G.S. 147-77 provides that "(a)ll funds belonging to the State of North Carolina, in the hands of any 
head of any department of the State" shall be deposited in a bank designated by the State Treasurer. The 
Petition questioned whether the $926,000 belonged to the State of North Carohna. 

G.S. 143-3.2 provides that "the State Controller shall have exclusive responsibility for the issuance of all 
warrants for the payment of money upon the State Treasurer." The State Controller must determine the 
legaUty of payment and the correctness of the accounts before issuing the warrants. The Petition alleged 
that the State Controller was required to but failed to issue the warrant even though the payment of 
$926,000 to the petitioner would have been legally correct. 

G.S. 147-68(b) states that "(n)o moneys shall be paid out of the treasury except on warrant unless 
there is a legislative appropriation or authority to pay the same." The respondents overlook the language 
"authority to pay the same." That authority is G.S. 147-84. The statute provides: 

Whenever taxes or other receipts of any kind are or have been by clerical error, misinterpre- 
tation of the law, or otherwise, collected and paid into the State treasury in excess of the 
amount legaUy due the State, said excess amount shall be refunded to the person entitled 
thereto. 

The petitioner's claim, if it has merit, falls squarely within the scope of this statute. Contrary to the 
respondent's argument, the plain language of G.S. 147-84 imposes no restriction on refunds after certif- 
ication of the funds. Neither does G.S. 143-3.2. Furthermore, in Bailey \\ State, supra, the Supreme 
Court recognized that the statute's purpose is to refund money erroneously paid. 

The $926,000 is a receipt of any kind which the Petition alleged was incorrectly paid into the Treas- 
ury due to a misinterpretation of Article IX, Section 7, and which the State Treasurer refused to refund. 
The respondents argued that a warrant must nevertheless be issued. If a warrant is required despite the 
language of G.S. 147-68(b) and G.S. 147-84, then the State ControUer must issue a warrant if the payment 
of the petitioner's claim is legaUy correct. The legal correctness depends on the application of Article IX, 
Section 7, to the allegations contained in the Petition. 

The petitioner, if its interpretation of Article IX, Section 7, is correct, has alleged a claim against all 
of the respondents. 

B. 

The respondents' arguments on the proper construction of Article IX, Section 7, were brief. The 
respondents first argued that they are legally "bound to follow statutory law absent a contrary' order from 
a court of the General Courts (sic) of Justice." (Memorandum p 17) As discussed above, the respondents 
are officers who are bound by their oaths to support and maintain the Constitution of North Carolina. 
Secondly, unlike Bailey v^ State, supra, there is no controlhng statute contrary' to the alleged applicable 
constitutional provision. All the statutes discussed above in Part A are truly procedural. Not one pur- 
ports to determine what moneys belong to the State; they only prescribe how moneys in the possession 
of the State shall be handled. 

The respondents' other argument is that /Vrticle IX, Section 7 is appUcable only to the penal laws 
of the State. The\' argued that G.S. 143-215.1 14A imposes a civil penalty which is remedial, not penal, 
in nature. Umted" States v. Ward. 448 US 242 (1980) and United States v. Santoro. 866 F 2d 1538 (4th 
Cir. 1989) were cited. The first held that Section 311(b)(3) of the Eederal Water Pollution Control Act 
imposed a ci\il, not a cmninal, penalty and therefore certain clauses of the Fifth and Si.\th Amendments 
were not applicable. The second concerned whether a forfeiture was civil or criminal. The Court held 
that if a penalty was designated as civil, the "clearest proof was required to show that the statute was so 
punitive that the forfeiture could not be labeled as civil. 



7:1 NORTH CAROLINA REGISTER April I, 1992 101 



CONTESTED CASE DECISIONS 



The respondents also cited MussaOam v, MussaUam, 321 NC 504, 364 SE 2d 364 (1988). The Su- 
preme Court held that the Guilford County Board of Education was entitled to the proceeds from the 
forfeiture of an appearance bond. The bond was a civil bond in a civil case. In case of forfeiture, the 
sureties were bound to pay the State of North Carolina. The Court construed Article IX, Section 7: 

We interpret the provisions of section 7 relating to the clear proceeds from penalties, forfei- 
tures and fines as identifying two distinct funds for the public schools. These are (1) the clear 
proceeds of all penalties and forfeitures in all cases regardless of their nature, so long as they 
accrue to the state; and (2) the clear proceeds of all fines collected for any breach of the 
criminal laws. ( Id. at 508-509, 366) 

The Court continued: 

The term 'penal laws,' as used in the context of article IX, section 7, means laws that impose 
a monetary payment for their violation. The payment is punitive rather than remedial in 
nature and is intended to p>enalize the wrongdoer rather than comp>ensate a particular party. 
( Id_ at 509, 367) 

For purposes of determining whether the $926,000 civil penalty belongs to the first fund identified 
in Article IX, the question is whether payment of the penalty is punitive (to penalize) or remedial (to 
compensate). (Fines collected for the breach of the criminal law clearly belong to the second fund.) See 
also State ex Rel. Thomburg v^ Currency, 324 NC 276, 378 SE 2d 1 ( 1989). The answer may be derived 
from an examination of the purpose of the air pollution control law in G.S. Chapter 143, Article 21B and 
the method of determining the amount of the penalty under G.S. 143-215.1 14A. 

G.S. 143-21 1 is the declaration of the public policy of this State concerning the conservation of water 
and air resources. The statute states in part: 

Recognizing that the water and air resources of the State belong to the people, the General 
Assembly affirms the State's ultimate responsibility for the preservation and development of 
these resources in the best interest of all its citizens and declares the prudent utilization of these 
resources to be essential to the general welfare. Standards of water and air purity shall be 
designed to protect public health, to prevent injury to plant and animal life, to prevent damage 
to public and private property, to insure continued enjoyment of the natural attractions of the 
State, to encourage the expansion of employment opportunities, to provide a permanent 
foundation for healthy industrial de\ elopment and to secure for the people of North Carolina, 
now and in the future, the beneficial uses of these great natural resources. 

The Secretary is directed to consider the factors set out in G.S. 1438-282. 1 when determining the 
amount of the civil penalty imposed under G.S. 143-215.1 14A: 

(1) The degree and extent of harm to the natural resources of the State, to the public health, 
or to private property resulting from the violation; 

(2) The duration and gravity of the violation; 

(3) The effect on ground or surface water quantity or quality or on air quality; 

(4) The cost of rectifying the damage; 

(5) The amount of money saved by noncomphance; 

(6) Whether the violation was committed willfuUy or intentionally; 

(7) The prior record of the violator in complying or failing to comply with programs over 
which the Environmental Management Commission has regulator.' authority; and 

(8) The cost to the State of the enforcement procedures. 



102 7:1 NORTH CAROLINA REGISTER April 1, 1992 



CONTESTED CASE DECISIONS 



The purpose of the air pollution control law is remedial, i.e. to protect the natural resources of this 
State. 1 he imposition of a civil penalty, such as the $926,000 penalty paid by Weyerhaeuser is remedial, 
i.e. to compensate the State of North Carolina for damage to its natural resources. The factors considered 
in imposing the penalty are primarily remedial, even though factors #5, 6 and 7 are punitive in nature. 
When applying the Mussallam rule, the undersigned concludes that the payment of a civil penalty for 
violation of the air pollution control law is remedial in that it compensates the State for damage to its 
natural resources. Since the payment of the civil penalty is remedial, the clear proceeds from the penalty 
belong to the State of North Carolina, the injured party, and not the petitioner pursuant to Article IX, 
Section 7, of the Constitution of North Carolina. Therefore, the the petitioner's claim is without merit 
and is subject to dismissal pursuant to G.S. lA-l, Rule 12(b)(6), Rules of Civil Procedure, because of an 
absence of law to support the claim. See Shoffner Industries, Inc., supra. 

ORDER 

The Motion to Dismiss for lack of subject matter jurisdiction is DENIED. 

The Motion to Dismiss for failure to state a claim upon which relief can be granted is ALLOWED. 

This is a FINAL DECISION pursuant to G.S. 150B-36(c)(4). 

NOTICE 

In order to appeal a fmal decision, the person seeking judicial review must file a petition in the Su- 
perior Court of Wake County or in the sujjerior court of the county where the person resides. The pe- 
tition for judicial review must be fded within thirty days after the person is served with a copy of the fmal 
decision. G.S. 150B-46 describes the contents of the petition and requires service of a copy of the petition 
on all parties. 

This the 13th day of March, 1992. 



Robert Roosevelt Reilly, Jr. 
Administrative Law Judge 



7:1 NORTH CAROLINA REGISTER April I, 1992 103 



NORTH CAROLINA ADMINISTRA TIVE CODE CLASSIFICA TION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of 
these, titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each 
major department in the North Carolina executive branch of government has been assigned a title 
number. Titles are further broken down into chapters which shall be numerical in order. The other 
two, subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DFV ISIONS OF THE NORTH CAROLINA ADMESISTRATIVE CODE 



riTLE 


DEPARTMENT 


LICENSrVG BOARDS 


CHAPTER 


1 


Administration 


Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic and Community 


Certified PubUc Accountant Examiners 


8 




Development 


Chiropractic Examiners 


10 


5 


Correction 


General Contractors 


12 


6 


Council of State 


Cosmetic Art Examiners 


14 


7 


Cultural Resources 


Dental Examiners 


16 


8 


Elections 


Dietetics/Nutrition 


17 


9 


Governor 


Electrical Contractors 


18 


10 


Human Resources 


Electrolysis 


19 


11 


Insurance 


Foresters 


20 


12 


Justice 


Geologists 


21 


13 


Labor 


Hearing Aid Dealers and Fitters 


22 


14A 


Crime Control and Public Safety 


Landscape /Vrchitects 


26 


15A 


Environment, Health, and Natural 


Landscape Contractors 


28 




Resources 


Martial & Family Therapy 


31 


16 


Public Education 


Medical Examiners 


32 


17 


Revenue 


Midwifery Joint Committee 


33 


18 


Secretary of State 


Mortuary Science 


34 


19A 


Transportation 


Nursing 


36 


20 


Treasurer 


Nursing Home Administrators 


37 


*21 


Occupational Licensing Boards 


Occupational Therapists 


38 


22 


Administrative Procedures 


Opticians 


40 


23 


Community Colleges 


Optometry 


42 


24 


Independent Agencies 


Osteopathic Examination and 


44 


25 


State Personnel 


Registration (Repealed) 




26 


Administrative Hearings 


Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating and Fire Sprinkler 


50 






Contractors 








Podiatr>' Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers and Land Sune> 


ors 56 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work 


63 






Speech and Language Pathologists and 


64 






Audiologists 








Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



104 



7:1 NORTH CAROLINA REGISTER April 1, 1992 



CUMULA TIVE INDEX 



CUMULA TIVE IXDEX 

(April 1992 - March 1993) 



1992 - 1993 
Pages Issue 

- 105 1 - April 



AO - Administrative Order 

AG - Attorney General's Opinions 

C - Correction 

FR - Final Rule 

GS - General Statute 

JO - Judicial Orders or Decision 

M - Miscellaneous 

NP - Notice of Petitions 

PR - Proposed Rule 

SO - Statements of Organization 

TR - Temporary Rule 



ADMPsISTRATION 

Auxiliary Services, 4 PR 

EVVIRONMENT, HEALTH, AND NATURAL RESOURCES 

1 lealth Services, 52 PR 

NPDES Permits Notice, 1 

Wildlife Resources Commission, 28 PR 

HUMAN RESOURCES 

Economic Opportunity, 5 PR 
Medical Assistance, 4 PR 

rsSlRANCE 

Departmental Rules, 7 PR 
Engineering and Building Codes, 19 PR 
Fire and Rescue Ser\'ices Division, 17 PR 
Life and Health Division, 22 PR 
Property and Casualty Division, 20 F'R 

JISTICE 

Alarm Systems Licensing Board, 27 PR 

LICENSESG BOARDS 

Electrolysis Examiners, Board of, 69 PR 

LIST OE RULES CODIFIED 

List of Rules Codified, 72 

TRANSPORTATION 

Motor Vehicles, Division of, 68 PR 



7:1 NORTH CAROLINA REGISTER April I, 1992 105 



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